Mueller Report, Volume II by Rudy Sutherland

U.S. Department of Justice AM:emey Werk Preclttet // May CeHtaiH Mttterial Preteetecl UHcler Fecl. R. Criffi. P. 6(e)

Report On The Investigation Into Russian Interference In The 2016 Presidential Election Volume II of II

Special Counsel Robert S. Mueller, III

Submitted Pursuant to 28 C.F.R. ยง 600.B(c)

Washington, D.C . March 2019

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TABLE OF CONTENTS - VOLUME II INTRODUCTION TO VOLUME TT .. ...................................................................................... ................. 1 EXECUTIVE SUMMARY TO VOLUME

II ...................................................................................... ....... 3

I. BACKGROUND LEGAL AND EVTDENTIARY PRINCIPLES ..... ............................ ..... .... .. ... ..... .. ... ....... 9

A. Legal Framework of Obstruction_of Justice ................................................................. .. 9 B. Investigative and Evidentiary Considerations .............................................................. 12

II. FACTUAL RESULTS OF THE OBSTRUCTION INVESTIGATION ...... .. ....................................... ....... 15 A. The Campaign 's Response to Reports About Russian Support for Trump ........... ... ... 15 1. Press Reports Allege Links Between the Trump Campaign and Russia .............. 16

2. The Trump Campaign Reacts to WikiLeaks's Release of Hacked Emails ........... 17 3. The Trump Campaign Reacts to Allegations That Russia was Seeking to Aid Candidate Trump ............................ ............................................................... 18 4. After the Election, Trump Continues to Deny Any Contacts or Connections with Russia or That Russia Aided his Election ................................ 21 B. The President's Conduct Concerning the Investigation of Michael Flynn .................. 24 1. Incoming National Security Advisor Flynn Discusses Sanctions on Russia with Russian Ambassador Sergey Kislyak ........................................................... 24 2. President-Elect Trump is Briefed on the Intelligence Community's Assessment of Russian Interference in the Election and Congress Opens Election-Interference Investigations .......................................... ........................... 27 3. Flynn Makes False Statements About his Communications with Kislyak to Incoming Adm inistration Officials, the Media, and the FBI ...... .......................... 29 4. DOJ Officials Notify the White House of Their Concerns About Flynn .... ......... 31 5. McGahn has a Follow-Up Meeting About Flynn with Yates; President Trump has Dinner with FBI Director Corney ....................................................... 32 6. Flynn's Resignation ................... ........................................... ................................ 36 7. The President Discusses Flynn with FBI Director Corney ...... ............................. 38 8. The Media Raises Questions About the President's Delay in Terminating Flynn ............................................................ ...................... .. ...................... ........... 41 9. The President Attempts to Have K.T. McFarland Create a Witness Statement Denying that he Directed Flynn's Discussions with Kislyak .............. 42 C. The President's Reaction to Public Confirmation of the FBI' s Russia Investigation .... ............................................................... .. ....... ..................................... 48 1. Attorney General Sessions Recuses From the Russia Investigation ..................... 48

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2. FBI Director Corney Publicly Confirms the Existence of the Russia Investigation in Testimony Before HPSCI ........................................................... 52 3. The President Asks Intelligence Community Leaders to Make Public Statements that he had No Connection to Russia ................................................. 55 4. The President Asks Corney to "Lift the Cloud" Created by the Russia Investigation .. ................................... ..................................................................... 57 D . Events Leading Up To and Surrounding the Termination of FBI Director Corney ............... .. ............... ....................... ............... .................. .................. ................ 62 1. Corney Testifies Before the Senate Judiciary Committee and Declines to Answer Questions About Whether the President is Under Investigation ............. 62 2. The President Makes the Decision to Terminate Corney ........ ............. .. ............... 64 E. The President's Efforts to Remove the Special Counsel... ......... .. ................ ............... 77 1. The Appointment of the Special Counsel and the President's Reaction .............. 78 2. The President Asserts that the Special Counsel has Conflicts oflnterest.. ........... 80 3. The Press Reports that the President is Being Investigated for Obstruction of Justice and the President Directs the White House Counsel to Have the Special Counsel Removed ............... .. ................ .. .................. ................ .. ............. 84 F. The President's Efforts to Curtail the Special Counsel Investigation .......................... 90 l. The President Asks Corey Lewandowski to Deliver a Message to Sessions to Curtail the Special Counsel Investigation ......................................................... 90 2. The President Follows Up with Lewandowski ....................... .. ............... .. ........... 92 3. The President Publicly Criticizes Sessions in a New York Times Interview ....... 93 4. The President Orders Priebus to Demand Sessions's Resignation .......... .. .. .... ..... 94 G . The President's Efforts to Prevent Disclosure of Emails About the June 9, 2016 Meeting Between Russians and Senior Campaign Officials ..................... ....... ... 98 1. The President Learns About the Existence of Emails Concerning the June 9, 2016 Trump Tower Meeting ................................................... .................. ... .. ... 98 2. The President Directs Communications Staff Not to Publicly Disclose Information About the June 9 Meeting ............................................................ .. . l 00 3 . The President Directs Trump Jr.'s Response to Press Inquiries About the June 9 Meeting .............. .. ........................................ .... ....................................... . 101 4. The Media Reports on the June 9, 2016 Meeting .... ........................................... 103 H . The President's Further Efforts to Have the Attorney General Take Over the Investigation ............................ .................... ................................ ......................... 107

1. The President Again Seeks to Have Sessions Reverse his Recusal. ................... 107 2. Additional Efforts to Have Sessions Unrecuse or Direct Investigations Covered by his Recusal.. .. .... .. ... ...................................................... .................... 109 II

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I. The President Orders McGahn to Deny that the President Tried to Fire the Special Counsel ......................................... ................................................................. 113 1. _T he Press Reports that the President Tried to Fire the Special Counsel.. ....... .... 113 2. The President Seeks to Have McGahn Dispute the Press Reports ..................... 114 J. The President's Conduct Towards Flynn, Manafort,ma ............. ................... 120 1. Conduct Directed at Michael Flynn .................................................................... 120 2. Conduct Directed at Paul Manafort ....................................................Âˇ................ 122 3. Harm to Ongoing Matter

....................................................................... 128

K. The President's Conduct Involving Michael Cohen .................................................. 134

I. Candidate Trump 's Awareness of and Involvement in the Trump Tower Moscow Project .................................................................................................. 134 2 . Cohen Determines to Adhere to a "Party Line" Distancing Candidate Trump From Russia ... ......................................................... ................... ............. 138 3. Cohen Submits False Statements to Congress Minimizing the Trump Tower Moscow Project in Accordance with the Party Line .. ............................. 139 4. The President Sends Messages of Support to Cohen ............... ........................... 144 5. The President's Conduct After Cohen Began Cooperating with the Government. ... ................. ................................ .................................................... 148 L. Overarching Factual Issues ........................................... ............................................. 156

III. LEGAL DEFENSES To THE APPLICATION OF OBSTRUCTION-OF-JUSTICE STATUTES To THE PRESIDENT .. ........................................ .............................. ....... .. .. ......................................... 159 A. Statutory Defenses to the Application of Obstruction-Of-Justice Provisions to the Conduct Under Investigation ......................... .................................................. 160

1. The Text of Section 1512(c)(2) Prohibits a Broad Range of Obstructive Acts ...... ............................................................. ........ ....................................... 160 2. Judicial Decisions Support a Broad Reading of Section 1512(c )(2) .................. 162 3. The Legislative History of Section 1512(c)(2) Does Not Justify Narrowing Its Text. ............................................................................ ;.............. ................... 164 4. General Principles of Statutory Construction Do Not Suggest That Section 1512(c )(2) is Inapplicable to the Conduct in this Investigation ......................... . 165 5. Other Obstruction Statutes Might Apply to the Conduct in this Investigation .............. ................ ....................................... ................................... 167 B. Constitutional Defenses to Applying Obstruction-Of-Justice Statutes to Presidential Conduct .................................................................................................. 168 I. The Requirement of a Clear Statement to Apply Statutes to Presidential Conduct Does Not Limit the Obstruction Statutes .................................... ......... 169

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2. Separation-of-Powers Principles Support the Conclusion that Congress May Validly Prohibit Corrupt Obstructive Acts Carried Out Through the President's Official Powers ................................................................................. 171 a. The Supreme Court's Separation-of-Powers Balancing Test Applies In This Context ............................................................................................... .. .. 172 b. The Effect of Obstruction-of-Justice Statutes on the President's Capacity to Perform His Article II Responsibilities is Limited ..................... 173 c. Congress Has Power to Protect Congressional, Grand Jury, and Judicial Proceedings Against Corrupt Acts from Any Source .................................... 176 3 . Ascertaining Whether the President Violated the Obstruction Statutes Would Not Chill his Performance of his Article II Duties ................................. 178 IV. CONCLUSION ..... "" .... "" .......................... ........ .......... ..... .. "" ......... .................................... "" 182

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INTRODUCTION TO VOLUME

This report is submitted to the Attorney General pursuant to 28 C.F.R. ยง 600.8(c), which states that, "[a]t the conclusion of the Special Counsel's work, he ... shall provide the Attorney General a confidential report explaining the prosecution or declination decisions [the Special Counsel] reached." Beginning in 2017, the President of the United States took a variety of actions towards the ongoing FBI investigation into Russia's interference in the 2016 presidential election and related matters that raised questions about whether he had obstructed justice. The Order appointing the Special Counsel gave this Office jurisdiction to investigate matters that arose directly from the FBI's Russia investigation, including whether the President had obstructed justice in connection with Russia-related investigations. The Special Counsel's jurisdiction also covered potentially obstructive acts related to the Special Counsel 's investigation itself. This Volume of our report summarizes our obstruction-of-justice investigation of the President. We first describe the considerations that guided our obstruction-of-justice investigation, and then provide an overview of this Volume: First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that "the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions" in violation of "the constitutional separation of powers." 1 Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, see 28 U.S.C. ยง 515; 28 C.F.R. ยง 600.7(a), this Office accepted OLC ' s legal conclusion for the purpose of exercising prosecutorialjurisdiction. And apart from OLC's constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President's capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct. 2 Second, while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President's term is permissible. 3 The OLC opinion also recognizes that a President does not have immunity after he leaves office. 4 And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in 1

A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 222, 260 (2000) (OLC Op.). 2

See U.S. CONST. Art. I ยง 2, cl. 5; ยง 3, cl. 6; cf OLC Op. at 257-258 (discussing relationship between impeachment and criminal prosecution of a sitting President). 3

OLC Op. at 257 n.36 ("A grand jury could continue to gather evidence throughout the period of immunity"). 4

OLC Op. at 255 ("Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President's term is over or he is otherwise removed from office by resignation or impeachment").

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safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available .

Third, we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person's conduct "constitutes a federal offense." U.S. Dep't of Justice, Justice Manualยง 9-27.220 (2018) (Justice Manual). Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.5 The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor's accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice. OLC noted similar concerns about sealed indictments. Even if an indictment were sealed during the President' s term, OLC reasoned, "it would be very difficult to preserve [an indictment's] secrecy," and if an indictment became public, "[t]he stigma and opprobrium" could imperil the President' s ability to govern ."6 Although a prosecutor' s internal report would not represent a formal public accusation akin to an indictment, the possibility of the report's public disclosure and the absence of a neutral adjudicatory forum to review its findings counseled against potentially determining "that the person' s conduct constitutes a federal offense." Justice Manual ยง 9-27.220.

Fourth, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President' s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him. *

This report on our investigation consists of four parts. Section I provides an overview of obstruction-of-justice principles and summarizes certain investigatory and evidentiary considerations. Section II sets forth the factual results of our obstruction investigation and analyzes the evidence. Section TIT addresses statutory and constitutional defenses . Section IV states our conclusion. 5

For that reason, criticisms have been lodged against the practice of naming unindicted coconspirators in an indictment. See United States v. Briggs, 514 F.2d 794, 802 (5th Cir. 1975) ("The courts have struck down with strong language efforts by grand juries to accuse persons of crime while affording them no forum in which to vindicate themselves."); see also Justice Manual ยง 9-11 .130. 6

OLC Op. at 259 & n.38 (citation omitted). 2

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EXECUTIVE SUMMARY TO VOLUME

Our obstruction-of-justice inquiry focused on a series of actions by the President that related to the Russian-interference investigations, including the President's conduct towards the law enforcement officials overseeing the investigations and the witnesses to relevant events. FACTUAL RESULTS OF THE OBSTRUCTION INVESTIGATION

The key issues and events we examined include the following:

The Campaign's response to reports about Russian support for Trump . During the 2016 presidential campaign, questions arose about the Russian government's apparent support for candidate Trump. After WikiLeaks released politically damaging Democratic Party emails that were reported to have been hacked by Russia, Trump publicly expressed skepticism that Russia was responsible for the hacks at the same time that he and other Campaign officials privately sought information about any further planned WikiLeaks releases. Trump also denied having any business in or connections to Russia, even though as late as June 2016 the Trump Organization had been pursuing a licensing deal for a skyscraper to be built in Russia called Trump Tower Moscow. After the election, the President expressed concerns to advisors that reports of Russia's election interference might lead the public to question the legitimacy of his election.

Conduct involving FBI Director Comey and Michael Flynn. In mid-January 2017, incoming National Security Advisor Michael Flynn falsely denied to the Vice President, other administration officials, and FBI agents that he had talked to Russian Ambassador Sergey Kislyak about Russia's response to U.S. sanctions on Russia for its election interference. On January 27, the day after the President was told that Flynn had lied to the Vice President and had made similar statements to the FBI, the President invited FBI Director Corney to a private dinner at the White House and told Corney that he needed loyalty. On February 14, the day after the President requested Flynn's resignation, the President told an outside advisor, "Now that we fired Flynn, the Russia thing is over." The advisor disagreed and said the investigations would continue. Later that afternoon, the President cleared the Oval Office to have a one-on-one meeting with Corney. Referring to the FBI's investigation of Flynn, the President said, "I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go." Shortly after requesting Flynn ' s resignation and speaking privately to Corney, the President sought to have Deputy National Security Advisor K.T. McFarland draft an internal letter stating that the President had not directed Flynn to discuss sanctions with Kislyak. McFarland declined because she did not know whether that was true, and a White House Counsel's Office attorney thought that the request would look like a quid pro quo for an ambassadorship she had been offered.

The President's reaction to the continuing Russia investigation. In February 2017, Attorney General Jeff Sessions began to assess whether he had to recuse himself from campaignrelated investigations because of his role in the Trump Campaign. In early March, the President told White House Counsel Donald McGahn to stop Sessions from recusing. And after Sessions announced his recusal on March 2, the President expressed anger at the decision and told advisors that he should have an Attorney General who would protect him. That weekend, the President took Sessions aside at an event and urged him to "unrecuse." Later in March, Corney publicly 3

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disclosed at a congressional hearing that the FBI was investigating "the Russian government's efforts to interfere in the 2016 presidential election," including any links or coordination between the Russian government and the Trump Campaign. In the following days, the President reached out to the Director of National Intelligence and the leaders of the Central Intelligence Agency (CTA) and the National Security Agency (NSA) to ask them what they could do to publicly dispel the suggestion that the President had any connection to the Russian election-interference effort. The President also twice called Corney directly, notwithstanding guidance from McGahn to avoid direct contacts with the Department of Justice. Corney had previously assured the President that the FBI was not investigating him personally, and the President asked Corney to " lift the cloud" of the Russia investigation by saying that publicly.

The President's termination of Comey. On May 3, 2017, Corney testified in a congressional hearing, but declined to answer questions about whether the President was personally under investigation. Within days, the President decided to terminate Corney. The President insisted that the termination letter, which was written for public release, state that Corney had informed the President that he was not under investigation. The day of the firing, the White House maintained that Corney's termination resulted from independent recommendations from the Attorney General and Deputy Attorney General that Corney should be discharged for mishandling the Hillary Clinton email investigation. But the President had decided to fire Corney before hearing from the Department of Justice. The day after firing Corney, the President told Russian officials that he had "faced great pressure because of Russia," which had been "taken off' by Corney's firing. The next day, the President acknowledged in a television interview that he was going to fire Corney regardless of the Department of Justice's recommendation and that when he "decided to just do it," he was thinking that "this thing with Trump and Russia is a made-up story." In response to a question about whether he was angry with Corney about the Russia investigation, the President said, "As far as I'm concerned, I want that thing to be absolutely done properly," adding that firing Corney "might even lengthen out the investigation." The appointment of a Special Counsel and efforts to remove him. On May 17, 2017, the Acting Attorney General for the Russia investigation appointed a Special Counsel to conduct the investigation and related matters. The President reacted to news that a Special Counsel had been appointed by telling advisors that it was "the end of his presidency" and demanding that Sessions resign. Sessions submitted his resignation, but the President ultimately did not accept it. The President told aides that the Special Counse l had conflicts of interest and suggested that the Special Counsel therefore could not serve. The President' s advisors told him the asserted conflicts were meritless and had already been considered by the Department of Justice. On June 14, 2017, the media reported that the Special Counsel ' s Office was investigating whether the President had obstructed justice. Press reports called this "a major turning point" in the investigation: while Corney had told the President he was not under investigation, following Corney's firing, the President now was under investigation. The President reacted to this news with a series of tweets criticizing the Department of Justice and the Special Counsel 's investigation. On June 17, 2017, the President called McGahn at home and directed him to call the Acting Attorney General and say that the Special Counsel had conflicts of interest and must be removed. McGahn did not carry out the direction, however, deciding that he would resign rather than trigger what he regarded as a potential Saturday Night Massacre.

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Efforts to curtail the Special Counsel's investigation. Two days after directing McGahn to have the Special Counsel removed, the President made another attempt to affect the course of the Russia investigation. On June 19, 2017, the President met one-on-one in the Oval Office with his former campaign manager Corey Lewandowski, a trusted advisor outside the government, and dictated a message for Lewandowski to deliver to Sessions. The message said that Sessions should publicly announce that, notwithstanding his recusal from the Russia investigation, the investigation was "very unfair" to the President, the President had done nothing wrong, and Sessions planned to meet with the Special Counsel and " let [him] move forward with investigating election meddling for future elections." Lewandowski said he understood what the President wanted Sessions to do. One month later, in another private meeting with Lewandowski on July 19, 2017, the President asked about the status of his message for Sessions to limit the Special Counsel investigation to future election interference. Lewandowski told the President that the message would be delivered soon. Hours after that meeting, the President publicly criticized Sessions in an interview with the New York Times, and then issued a series of tweets making it clear that Sessions's job was in jeopardy. Lewandowski did not want to deliver the President's message personally, so he asked senior White House official Rick Dearborn to deliver it to Sessions. Dearborn was uncomfortable with the task and did not follow through.

Efforts to prevent public disclosure of evidence. Tn the summer of 2017, the President learned that media outlets were asking questions about the June 9, 2016 meeting at Trump Tower between senior campaign officials, including Donald Trump Jr., and a Russian lawyer who was said to be offering damaging information about Hillary Clinton as "part of Russia and its government's support for Mr. Trump." On several occasions, the President directed aides not to publicly disclose the emails setting up the June 9 meeting, suggesting that the emails would not leak and that the number of lawyers with access to them should be limited. Before the emails became public, the President edited a press statement for Trump Jr. by deleting a line that acknowledged that the meeting was with "an individual who [Trump Jr.] was told might have information helpful to the campaign" and instead said only that the meeting was about adoptions of Russian children . When the press asked questions about the President's involvement in Trump Jr. ' s statement, the President's personal lawyer repeatedly denied the President had played any role.

Further efforts to have the Attorney General take control of the investigation. In early summer 2017, the President called Sessions at home and again asked him to reverse his recusal from the Russia investigation. Sessions did not reverse his recusal. In October 2017, the President met privately with Sessions in the Oval Office and asked him to "take [a] look" at investigating Clinton. Tn December 2017, shortly after Flynn pleaded guilty pursuant to a cooperation agreement, the President met with Sessions in the Oval Office and suggested, according to notes taken by a senior advisor, that if Sessions unrecused and took back supervision of the Russia investigation, he would be a "hero." The President told Sessions, "I'm not going to do anything or direct you to do anything. I just want to be treated fairly." In response, Sessions volunteered that he had never seen anything "improper" on the campaign and told the President there was a "whole new leadership team" in place. He did not unrecuse.

Efforts to have McGahn deny that the President had ordered him to have the Special Counsel removed. In early 2018, the press reported that the President had directed McGahn to

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have the Special Counsel removed in June 2017 and that McGahn had threatened to resign rather than carry out the order. The President reacted to the news stories by directing White House officials to tell McGahn to dispute the story and create a record stating he had not been ordered to have the Special Counsel removed. McGahn told those officials that the media reports were accurate in stating that the President had directed McGahn to have the Special Counsel removed. The President then met with McGahn in the Oval Office and again pressured him to deny the reports . In the same meeting, the President also asked McGahn why he had told the Special Counsel about the President's effort to remove the Special Counsel and why McGahn took notes of his conversations with the President. McGahn refused to back away from what he remembered happening and perceived the President to be testing his mettle.

Conduct towards Flynn, Manafort,litilll . After Flynn withdrew from a joint defense agreement with the President and began cooperating with the government, the President's personal counsel left a message for Flynn's attorneys reminding them of the President's warm feelings towards Flynn, which he said "still remains," and asking for a "heads up" if Flynn knew "information that implicates the President." When Flynn 's counsel reiterated that Flynn could no longer share information pursuant to a joint defense agreement, the President's personal counsel said he would make sure that the President knew that Flynn's actions reflected "hostility" towards the President. During Manafort' s prosecution and when the jury in his criminal. trial was deliberating, the President praised Manafort in public, said that Manafort was being treated unfairly, and declined to rule out a pardon . After Manafort was convicted, the President called Manafort " a brave man" for refusin to "break" and said that "fli in " " almost ou ht to be

Conduct involving Michael Cohen. The President's conduct towards Michael Cohen, a former Trump Organization executive, changed from praise for Cohen when he falsely minimized the President's involvement in the Trump Tower Moscow project, to castigation of Cohen when he became a cooperating witness. From September 2015 to June 2016, Cohen had pursued the Trump Tower Moscow project on behalf of the Trump Organization and had briefed candidate Trump on the project numerous times, including discussing whether Trump should travel to Russia to advance the deal. In 2017, Cohen provided false testimony to Congress about the project, including stating that he had only briefed Trump on the project three times and never discussed travel to Russia with him, in an effort to adhere to a "party line" that Cohen said was developed to minimize the President's connections to Russia. While preparing for his congressional testimony, Cohen had extensive discussions with the President's personal counsel, who, according to Cohen, said that Cohen should "stay on message" and not contradict the President. After the FBI searched Cohen's home and office in April 2018, the President publicly asserted that Cohen would not "flip," contacted him directly to tell him to "stay strong," and privately passed messages of support to him . Cohen also discussed pardons with the President's personal counsel and believed that if he stayed on message he would be taken care of. But after Cohen began cooperating with the government in the summer of 2018, the President publicly criticized him, called him a "rat," and suggested that his family members had committed crimes.

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Overarching factual issues. We did not make a traditional prosecution decision about these facts, but the evidence we obtained supports several general statements about the President's conduct. Several features of the conduct we investigated distinguish it from typical obstruction-ofjustice cases. First, the investigation concerned the President, and some of his actions, such as firing the FBI director, involved facially lawful acts within his Article IT authority, which raises constitutional issues discussed below. At the same time, the President's position as the head of the Executive Branch provided him with unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses-all of which is relevant to a potential obstruction-of-justice analysis . Second, unlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference. Although the obstruction statutes do not require proof of such a crime, the absence of that evidence affects the analysis of the President's intent and requires consideration of other possible motives for his conduct. Third, many of the President' s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, took place in public view. That circumstance is unusual, but no principle of law excludes public acts from the reach of the obstruction laws. Tfthe likely effect of public acts is to influence witnesses or alter their testimony, the harm to the justice system's integrity is the same. Although the series of events we investigated involved discrete acts, the overall pattern of the President's conduct towards the investigations can shed light on the nature of the President's acts and the inferences that can be drawn about his intent. In particular, the actions we investigated can be divided into two phases, reflecting a possible shift in the President's motives. The first phase covered the period from the President' s first interactions with Corney through the President's firing of Corney. During that time, the President had been repeatedly told he was not personally under investigation. Soon after the firing of Corney and the appointment of the Special Counsel, however, the President became aware that his own conduct was being investigated in an obstruction-of-justice inquiry. At that point, the President engaged in a second phase of conduct, involving public attacks on the inve~tigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation. Judgments about the nature of the President's motives during each phase would be informed by the totality of the evidence. STATUTORY AND CONSTITUTIONAL DEFENSES

The President's counsel raised statutory and constitutional defenses to a possible obstruction-of-justice analysis of the conduct we investigated. We concluded that none of those legal defenses provided a basis for declining to investigate the facts.

Statutory defenses. Consistent with precedent and the Department of Justice's general approach to interpreting obstruction statutes, we concluded that several statutes could apply here. See 18 U.S.C. Â§Â§ 1503, 1505, 1512(b)(3), I5l2(c)(2) . Section 1512(c)(2) is an omnibus obstruction-of-justice provision that covers a range of obstructive acts directed at pending or contemplated official proceedings. No principle of statutory construction justifies narrowing the provision to cover only conduct that impairs the integrity or availability of evidence. Sections 1503 and 1505 also offer broad protection against obstructive acts directed at pending grand jury, 7

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judicial, administrative, and congressional proceedings, and they are supplemented by a provision in Section I 5 I 2(b) aimed specifically at conduct intended to prevent or hinder the communication to law enforcement of information related to a federal crime.

Constitutional defenses. As for constitutional defenses arising from the President' s status as the head of the Executive Branch, we recognized that the Department of Justice and the courts have not definitively resolved these issues. We therefore examined those issues through the framework established by Supreme Court precedent governing separation-of-powers issues. The Department of Justice and the President's personal counsel have recognized that the President is subject to statutes that prohibit obstruction of justice by bribing a witness or suborning perjury because that conduct does not implicate his constitutional authority. With respect to whether the President ca,n be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a President's corrupt use of his authority in order to protect the integrity of the administration of justice. Under applicable Supreme Court precedent, the Constitution does not categorically and permanently immunize a President for obstructing justice through the use of his Article II powers. The separation-of-powers doctrine authorizes Congress to protect official proceedings, including those of courts and grand juries, from corrupt, obstructive acts regardless of their source. We also concluded that any inroad on presidential authority that would occur from prohibiting corrupt acts does not undermine the President's ability to fulfill his constitutional mission. The term "corruptly" sets a demanding standard. It requires a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others. A preclusion of " corrupt" official action does not diminish the President' s ability to exercise Article II powers. For example, the proper supervision of criminal law does not demand freedom for the President to act with a corrupt intention of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment. To the contrary, a statute that prohibits official action undertaken for such corrupt purposes furthers, rather than hinders, the impartial and evenhanded administration of the law. It also aligns with the President's constitutional duty to faithfully execute the laws. Finally, we concluded that in the rare case in which a criminal investigation of the President's conduct is justified, inquiries to determine whether the President acted for a corrupt motive should not impermissibly chill his performance of his constitutionally assigned duties. The conclusion that Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law. CONCLUSION

Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President's conduct. The evidence we obtained about the President's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction ofjustice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

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BACKGROUND LEGAL AND EVIDENTIARY PRINCIPLES

Legal Framework of Obstruction of Justice

The May 17, 2017 Appointment Order and the Special Counsel regulations provide this Office with jurisdiction to investigate " federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses." 28 C.F.R. § 600.4(a). Because of that description of our jurisdiction, we sought evidence for our obstruction-of-justice investigation with the elements of obstruction offenses in mind. Our evidentiary analysis is similarly focused on the elements of such offenses, although we do not draw conclusions on the ultimate questions that govern a prosecutorial decision under the Principles of Federal Prosecution. See Justice Manual § 9-27.000 et seq. (2018) . Here, we summarize the law interpreting the elements of potentially relevant obstruction statutes in an ordinary case. This discussion does not address the unique constitutional issues that arise in an inquiry into official acts by the President. Those issues are discussed in a later section of this report addressing constitutional defenses that the President' s counsel have raised . See Volume II, Section III.B, infra. Three basic elements are common to most of the relevant obstruction statutes: (1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent. See, e.g., 18 U.S .C. §§ 1503, 1505, 1512(c)(2) . We describe those elements as they have been interpreted by the courts. We then discuss a more specific statute aimed at witness tampering, see 18 U.S.C. § I 512(b), and describe the requirements for attempted offenses and endeavors to obstructjustice, see 18 U .S.C. §§ 1503, 1512(c)(2).

Obstructive act. Obstruction-of-justice law "reaches all corrupt conduct capable of producing an effect that prevents justice from being duly administered, regardless of the means employed." United States v. Silverman, 745 F.2d 1386, 1393 (11th Cir. 1984) (interpreting 18 U.S.C . § 1503). An "effort to influence" a proceeding can qualify as an endeavor to obstruct justice even if the effort was "subtle or circuitous" and " however cleverly or with whatever cloaking of purpose" it was made . United States v. Roe, 529 F.2d 629, 632 (4th Cir. 1975); see also United States v. Quattrone, 441 F.3d 153, 173 (2d Cir. 2006). The verbs "' obstruct or impede' are broad" and "can refer to anything that blocks, makes difficult, or hinders ." Marinello v. United States, 138 S. Ct. 1101 , 1106 (2018) (internal brackets and quotation marks omitted). An improper motive can render an actor' s conduct criminal even when the conduct would otherwise be lawful and within the actor's authority. See United States v. Cueto, 151 F .3d 620, 631 (7th Cir. 1998) (affirming obstruction conviction of a criminal defense attorney for " litigationrelated conduct") ; United States v. Cintolo, 818 F .2d 980, 992 (1st Cir. 1987) ("any act by any party-whether lawful or unlawful on its face- may abridge § 1503 if performed with a corrupt motive").

Nexus to a pending or contemplated official proceeding. Obstruction-of-justice law generally requires a nexus, or connection, to an official proceeding. In Section 1503, the nexus must be to pending "judicial or grand jury proceedings." United States v. Aguilar, 515 U.S. 593, 9

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599 ( 1995). In Section l SOS, the nexus can include a connection to a "pending" federal agency proceeding or a congressional inquiry or investigation. Under both statutes, the government must demonstrate "a relationship in time, causation, or logic" between the obstructive act and the proceeding or inquiry to be obstructed. Id. at 599; see also Arthur Andersen LLP v. United States, 544 U.S. 696, 707-708 (2005). Section l 5 I2(c) prohibits obstructive efforts aimed at official proceedings including judicial or grand jury proceedings. 18 U.S.C. ยง l 5 l 5(a)(l )(A). ' \for purposes of' Section 1S12, "an official proceeding need not be pending or about to be instituted at the time of the offense." 18 U.S.C. ยง 1512(f)(l ). Although a proceeding need not already be in progress to trigger liability under Section l 5 l 2(c), a nexus to a contemplated proceeding still must be shown. UnitedStatesv. Young, 916 F.3d 368, 386 (4th Cir. 2019); UnitedStatesv. Petruk, 781 F.3d 438, 445 (8th Cir. 2015); United States v. Phillips, 583 F.3d 1261, 1264 (10th Cir. 2009); United States v. Reich, 479 F .3d 179, 186 (2d Cir. 2007). The nexus requirement narrows the scope of obstruction statutes to ensure that individuals have " fair warning" of what the law proscribes. Aguilar, 515 U.S. at 600 (internal quotation marks omitted). The nexus showing has subjective and objective components. As an objective matter, a defendant must act " in a manner that is likely to obstruct justice," such that the statute "excludes defendants who have an evil purpose but use means that would only unnaturally and improbably be successful." Aguilar, 515 U.S. at 601-602 (emphasis added; internal quotation marks omitted). "[T]he endeavor must have the natural and probable effect of interfering with the due administration of justice." Id. at 599 (citation and internal quotation marks omitted). As a subjective matter, the actor must have "contemplated a particular, foreseeable proceeding." Petruk, 781 F .3d at 445-446. A defendant need not directly impede the proceeding. Rather, a nexus exists if "discretionary actions of a third person would be required to obstruct the judicial proceeding if it was foreseeable to the defendant that the third party would act on the [defendant's] communication in such a way as to obstruct the judicial proceeding." United States v. Martinez, 862 F .3d 223, 238 (2d Cir. 2017) (brackets, ellipses, and internal quotation marks omitted).

Corruptly. The word " corruptly" provides the intent element for obstruction ofjustice and means acting "knowingly and dishonestly" or "with an improper motive." United States v. Richardson, 676 F .3d 491 , 508 (5th Cir. 2012); United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013) (to act corruptly means to "act[] with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct" the relevant proceeding) (some quotation marks omitted); see 18 U .S.C. ยง 151 S(b) ("As used in section 1505, the term 'corruptly' means acting with an improper purpose, personally or by influencing another."); see also Arthur Andersen, 544 U.S. at 705-706 (interpreting "corruptly" to mean "wrongful, immoral, depraved, or evil" and holding that acting "knowingly .. . corruptly" in 18 U .S.C. ยง 15 l 2(b) requires "consciousness of wrongdoing"). The requisite showing is made when a person acted with an intent to obtain an "improper advantage for [him ]self or someone else, inconsistent with official duty and the rights of others." BALLENTINE'S LAW DICTIONARY 276 (3d ed. 1969); see United States v. Pasha, 797 F .3d 1122, 1132 (D.C. Cir. 2015); Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (characterizing this definition as the "longstanding and well-accepted meaning" of "corruptly"). Witness tampering . A more specific provision in Section 1512 prohibits tampering with a witness . See 18 U.S.C. ยง 1512(b)(I), (3) (making it a crime to "knowingly use[] intimidation ... or corruptly persuade[] another person," or "engage[] in misleading conduct towards another 10

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person," with the intent to "influence, delay, or prevent the testimony of any person in an official proceeding" or to "hinder, delay, or prevent the communication to a law enforcement officer ... of information relating to the commission or possible commission of a Federal offense"). To establish corrupt persuasion, it is sufficient that the defendant asked a potential witness to lie to investigators in contemplation of a likely federal investigation into his conduct. United States v. Ed/ind, 887 F.3d 166, 174 (4th Cir. 2018); United States v. Sparks, 791 F.3d 1188, 1191-1192 (10th Cir. 2015); United States v. Byrne, 435 F .3d 16, 23-26 (1st Cir. 2006); United States v. LaShay, 417 F.3d 715, 718-719 (7th Cir. 2005); United States v. Burns, 298 F.3d 523, 539-540 (6th Cir. 2002); United States v. Pennington, 168 F.3d 1060, I 066 (8th Cir. 1999). The "persuasion" need not be coercive, intimidating, or explicit; it is sufficient to "urge," "induce," "ask[]," "argu[ e ]," "giv[e] reasons," Sparks, 791 F .3d at 1192, or "coach[] or remind[] witnesses by planting misleading facts," Ed/ind, 887 F.3d at 174. Corrupt persuasion is shown "where a defendant tells a potential witness a false story as if the story were true, intending that the witness believe the story and testify to it." United States v. Rodolitz, 786 F.2d 77, 82 (2d Cir. 1986); see United States v. Gabriel, 125 F.3d 89, 102 (2d Cir. 1997). It also covers urging a witness to recall a fact that the witness did not know, even if the fact was actually true. See LaShay, 417 F .3d at 719. Corrupt persuasion also can be shown in certain circumstances when a person, with an improper motive, urges a witness not to cooperate with law enforcement. See United States v. Shotts, 145 F.3d 1289, 1301 (11th Cr. 1998) (telling Secretary "not to [say] anything [to the FBI] and [she] would not be bothered"). When the charge is acting with the intent to hinder, delay, or prevent the communication of information to law enforcement under Section l 512(b)(3 ), the "nexus" to a proceeding inquiry articulated in Aguilar-that an individual have " knowledge that his actions are likely to affect the judicial proceeding," 515 U.S. at 599-does not apply because the obstructive act is aimed at the communication of information to investigators, not at impeding an official proceeding. Acting "knowingly ... corruptly" requires proof that the individual was "conscious of wrongdoing." Arthur Andersen, 544 U.S. at 705-706 (declining to explore "[t]he outer limits of this element" but indicating that an instruction was infirm where it permitted conviction even if the defendant "honestly and sincerely believed that [the] conduct was lawful"). It is an affirmative defense that "the conduct consisted solely of lawful conduct.and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully." 18 U.S.C. ยง 1512(e).

Attempts and endeavors. Section 1512(c)(2) covers both substantive obstruction offenses and attempts to obstruct justice. Under general principles of attempt law, a person is guilty of an attempt when he has the intent to commit a substantive offense and takes an overt act that constitutes a substantial step towards that goal. See United States v. Resendiz-Ponce, 549 U.S. 102, 106-107 (2007). "[T]he act [must be] substantial, in that it was strongly corroborative of the defendant's criminal purpose." United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003). While "mere abstract talk" does not suffice, any "concrete and specific" acts that corroborate the defendant's intent can constitute a "substantial step." United States v. Irving, 665 F.3d 1184, 11981205 (10th Cir. 2011). Thus, "soliciting an innocent agent to engage in conduct constituting an element ofthe crime" may qualify as a substantial step. Model Penal Codeยง 5 .01 (2)(g); see United States v. Lucas, 499 F.3d 769, 781 (8th Cir. 2007) .

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The omnibus clause of 18 U .S.C. ยง 1503 prohibits an "endeavor" to obstruct justice, which sweeps more broadly than Section 1512's attempt provision. See United States v. Sampson, 898 F.3d 287, 302 (2d Cir. 2018); United States v. Leisure, 844 F .2d 1347, 1366-1367 (8th Cir. 1988) (collecting cases). "It is well established that a[n] [obstruction-of-justice] offense is complete when one corruptly endeavors to obstruct or impede the due administration of justice; the prosecution need not prove that the due administration of justice was actually obstructed or impeded." United States v. Davis, 854 F.3d 1276, 1292 (11th Cir. 2017) (internal quotation marks omitted).

Investigative and Evidentiary Considerations

After the appointment of the Special Counsel, this Office obtained evidence about the following events relating to potential issues of obstruction of justice involving the President: (a) The President' s January 27, 2017 dinner with former FBI Director James Corney in which the President reportedly asked for Corney ' s loyalty, one day after the White House had been briefed by the Department of Justice on contacts between former National Security Advisor Michael Flynn and the Russian Ambassador; (b) The President's February 14, 2017 meeting with Corney in which the President reportedly asked Corney not to pursue an investigation of Flynn; (c) The President's private requests to Corney to make public the fact that the President was not the subject of an FBI investigation and to lift what the President regarded as a cloud ; (d) The President's outreach to the Director of National Intelligence and the Directors of the National Security Agency and the Central Intelligence Agency about the FBI's Russia investigation; (e) The President' s stated rationales for terminating Corney on May 9, 2017, including statements that could reasonably be understood as acknowledging that the FBI ' s Russia investigation was a factor in Corney' s termination ; and

(f) The President's reported involvement in issuing a statement about the June 9, 2016 Trump Tower meeting between Russians and senior Trump Campaign officials that said the meeting was about adoption and omitted that the Russians had offered to provide the Trump Campaign with derogatory information about Hillary Clinton. Taking into account that information and our analysis of applicable statutory and constitutional principles (discussed below in Volume TT, Section III, infra), we determined that there was a sufficient factual and legal basis to further investigate potential obstruction-of-justice issues involving the President. Many of the core issues in an obstruction-of-justice investigation turn on an individual's actions and intent. We therefore requested that the White House provide us with documentary evidence in its possession on the relevant events. We also sought and obtained the White House 's concurrence in our conducting interviews of White House personnel who had relevant information. And we interviewed other witnesses who had pertinent knowledge, obtained documents on a 12

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voluntary basis when possible, and used legal process where appropriate . These investigative steps allowed us to gather a substantial amount of evidence. We also sought a voluntary interview with discussion, the President declined to be interviewed. During the course of our discussions, the President did agree to answer written questions on certain Russia-related topics, and he provided us with answers. He did not similarly agree to provide written answers to questions on obstruction topics or questions on events during the transition. Ultimately, while we believed that we had the authority and legal justification to issue a grand jury subpoena to obtain the President's testimony, we chose not to do so. We made that decision in view of the substantial delay that such an investigative step would likely produce at a late stage in our investigation . We also assessed that based on the significant body of evidence we had already obtained of the President's actions and his public and private statements describing or explaining those actions, we had sufficient evidence to understand relevant events and to make certain assessments without the President's testimony. The Office's decision-making process on this issue is described in more detail in Appendix C, infra, in a note that precedes the President's written responses. In assessing the evidence we obtained, we relied on common principles that apply in any investigation. The issue of criminal intent is often inferred from circumstantial evidence. See, e.g., United States v. Croteau, 819 F.3d 1293, 1305 (11th Cir. 2016) (" [G]uilty knowledge can rarely be established by direct evidence.. . . Therefore, mens rea elements such as knowledge or intent may be proved by circumstantial evidence.") (internal quotation marks omitted); United States v. Robinson, 702 F.3d 22, 36 (2d Cir. 2012) ("The government's case rested on circumstantial evidence, but the mens rea elements of knowledge and intent can often be proved through circumstantial evidence and the reasonable inferences drawn therefrom.") (internal quotation marks omitted). The principle that intent can be inferred from circumstantial evidence is a necessity in criminal cases, given the right of a subject to assert his privilege against compelled self-incrimination under the Fifth Amendment and therefore decline to testify. Accordingly, determinations on intent are frequently reached without the opportunity to interview an investigatory subj ect. Obstruction-of-justice cases are consistent with this rule. See, e.g., Ed/ind, 887 F.3d at 174, 176 (relying on "significant circumstantial evidence that [the defendant] was conscious of her wrongdoing" in an obstruction case; "(b]ecause evidence of intent will almost always be circumstantial, a defendant may be found culpable where the reasonable and foreseeable consequences of her acts are the obstruction of justice") (internal quotation marks, ellipses, and punctuation omitted); Quattrone, 441 F .3d at 173-174. Circumstantial evidence that illuminates intent may include a pattern of potentially obstructive acts. Fed. R. Evid. 404(b) ("Evidence of a crime, wrong, or other act ... may be admissible . .. [to] prov[e] motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."); see, e.g. , United States v. Frankhauser, 80 F .3d 641, 648-650 ( I st Cir. 1996); United States v. Arnold, 773 F .2d 823 , 832-834 (7th Cir. 1985); Cintolo, 818 F .2d at 1000. Credibility judgments may also be made based on objective facts and circumstantial evidence. Standard jury instructions highlight a variety of factors that are often relevant in 13

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assessing credibility. These include whether a witness had a reason not to tell the truth; whether the witness had a good memory; whether the witness had the opportunity to observe the events about which he testified; whether the witness's testimony was corroborated by other witnesses; and whether anything the witness said or wrote previously contradicts his testimony. See, e.g., First Circuit Pattern Jury Instructions ยง 1.06 (2018); Fifth Circuit Pattern Jury Instructions (Criminal Cases) ยง 1.08 (2012); Seventh Circuit Pattern Jury Instruction ยง 3.0 l (2012). In addition to those general factors, we took into account more specific factors in assessing the credibility of conflicting accounts of the facts. For example, contemporaneous written notes can provide strong corroborating evidence. See United States v. Nobles, 422 U.S. 225, 232 (l 975) (the fact that a "statement appeared in the contemporaneously recorded report .. . would tend strongly to corroborate the investigator's version of the interview"). Similarly, a witness's recitation of his account before he had any motive to fabricate also supports the witness's credibility. See Tome v. United States, 513 U.S. 150, 158 (1995) ("A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive."). Finally, a witness's false description of an encounter can imply consciousness of wrongdoing. See Al-Adahi v. Obama, 613 F.3d 1102, 1107 (D.C. Cir. 2010) (noting the "well-settled principle that false exculpatory statements are evidence-often strong evidence-of guilt"). We applied those settled legal principles in evaluating the factual results of our investigation.

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II. FACTUAL RESULTS OF THE OBSTRUCTION INVESTIGATION This section of the report details the evidence we obtained. We first provide an overview of how Russia became an issue in the 2016 presidential campaign, and how candidate Trump responded. We then tum to the key events that we investigated: the President's conduct concerning the FBI investigation of Michael Flynn; the President' s reaction to public confirmation of the FBl ' s Russia investigation ; events leading up to and surrounding the termination of FBI Director Corney; efforts to terminate the Special Counsel; efforts to curtail the scope of the Special Counsel 's investigation; efforts to prevent disclosure of information about the June 9, 2016 Trump Tower meeting between Russians and senior campaign officials; efforts to have the Attorney General unrecuse; and conduct towards McGahn, Cohen, and other witnesses. We summarize the evidence we found and then analyze it by reference to the three statutory obstruction-of-justice elements: obstructive act, nexus to a proceeding, and intent. We focus on elements because, by regulation, the Special Counsel has "jurisdiction ... to investigate ... federal crimes committed in the course of, and with intent to interfere with, the Special Counsel 's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses." 28 C.F.R. Â§ 600.4(a). Consistent with our jurisdiction to investigate federal obstruction crimes, we gathered evidence that is relevant to the elements of those crimes and analyzed them within an elements framework-while refraining from reaching ultimate conclusions about whether crimes were committed, for the reasons explained above. This section also does not address legal and constitutional defenses raised by counsel for the President; those defenses are analyzed in Volume II, Section ITT, infra.

The Campaign's Response to Reports About Russian Support for Trump

During the 2016 campaign, the media raised questions about a possible connection between the Trump Campaign and Russia. 7 The questions intensified after WikiLeaks released politically damaging Democratic Party emails that were reported to have been hacked by Russia. Trump responded to questions about possible connections to Russia by denying any business involvement in Russia-even though the Trump Organization had pursued a business project in Russia as late as June 2016. Trump also expressed skepticism that Russia had hacked the emails at the same time as he and other Campaign advisors privately sought information about any further planned WikiLeaks releases. After the election, when questions persisted about possible links between Russia and the Trump Campaign, the President-Elect continued to deny any connections to Russia and privately expressed concerns that reports of Russian election interference might lead the public to question the legitimacy of his election .8

This section summarizes and cites various news stories not for the truth of the information contained in the stories, but rather to place candidate Trump's response to those stories in context. Volume I of this report analyzes the underlying facts of several relevant events that were reported on by the media during the campaign. 8

As discussed in Volume I, while the investigation identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to charge that any member of the Trump Campaign conspired or coordinated with representatives ofthe Russian government to interfere in the 2016 election.

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1. Press Reports Allege Links Between the Trump Campaign and Russia On June 16, 2015, Donald J. Trump declared his intent to seek nomination as the Republican candidate for President. 9 By early 2016, he distinguished himself among Republican candidates by speaking of closer ties with Russia, 10 saying he would get along well with Russian President Vladimir Putin, 11 questioning whether the NATO alliance was obsolete, 12 and praising Putin as a "strong leader." 13 The press reported that Russian political analysts and commentators perceived Trump as favorable .to Russia. 14 Beginning in February 2016 and continuing through the summer, the media reported that several Trump campaign advisors appeared to have ties to Russia. For example, the press reported that campaign advisor Michael Flynn was seated next to Vladimir Putin at an RT gala in Moscow in December 2015 and that Flynn had appeared regularly on RT as an analyst. 15 The press also reported that foreign policy advisor Carter Page had ties to a Russian state-run gas company, 16 and that campaign chairman Paul Manafort had done work for the "Russian-backed former Ukrainian president Viktor Yanukovych." 17 In addition, the press raised questions during the Republican

@realDonaldTrump 6/16/15 (11 :57 a.m. ET) Tweet.

10 See,

e.g., Meet the Press Interview with Donald J. Trump, NBC (Dec. 20, 2015) (Trump: "I think it would be a positive thing if Russia and the United States actually got along"); Presidential Candidate Donald Trump News Conference, Hanahan, South Carolina, C-SPAN (Feb. 15, 2016) ("You want to make a good deal for the country, you want to deal with Russia."). 11

See, e.g., Anderson Cooper 360 Degrees, CNN (July 8, 2015) ('"I think I get along with [Putin] fine. "); Andrew Rafferty, Trump Says He Would "Get Along Very Well" With Putin, NBC (July 30, 2015) . (quoting Trump as saying, "I think T would get along very well with Vladimir Putin."). 12

See, e.g., @rea!DonaldTrump Tweet 3/24/ 16 (7:47 a.m. ET); @rea!DonaldTrump Tweet 3/24/ 16 (7:59 a.m. ET). 13

See, e.g., Meet the Press Interview with Donald J. Trump, NBC (Dec. 20, 2015) ("[Putin] is a strong leader. What am I gonna say, he's a weak leader? He ' s making mincemeat out of our President."); Donald Trump Campaign Rally in Vandalia, Ohio, C-SPAN (Mar. 12, 2016) ("I said [Putin] was a strong leader, which he is. I mean, he might be bad, he might be good. But he's a strong leader."). 14

See, e.g. , Andrew Osborn, From Russia with love: why the Kremlin backs Trump, Reuters (Mar. 24, 2016); Robert Zubrin, Trump: The Kremlin's Candidate, National Review (Apr. 4, 2016). 15

See, e.g., Mark Hosenball & Steve Holland, Trump being advised by ex-US. Lieutenant General who favors closer Russia ties, Reuters (Feb. 26, 2016); Tom Hamburger et al., Inside Trump 's financial ties to Russia and his unusual flattery of Vladimir Putin, Washington Post (June 17, 2016). Certain matters pe1iaining to Flynn are described in Volume I, Section IV.B.7, supra. 16

See, e.g., Zachary Mider, Trump's New Russia Advisor Has Deep Ties to Kremlin's Gazprom, Bloomberg (Mar. 30, 2016); Julia Iofee, Who is Carter Page?, Politico (Sep. 23, 2016). Certain matters pertaining to Page are described in Volume I, Section IV.A.3, supra. 17

Tracy Wilkinson, In a shift, Republican platform doesn't call for arming Ukraine against Russia, spurring outrage, Los Angeles Times (July 21, 2016); Josh Ragin, Trump campaign guts GOP's antiRussia stance on Ukraine, Washington Post (July 18, 2016). 16

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National Convention about the Trump Campaign's involvement in changing the Republican platform's stance on giving "weapons to Ukraine to fight Russian and rebel forces." 18 2. The Trump Campaign Reacts to WikiLeaks's Release of Hacked Emails On June 14, 2016, a cybersecurity firm that had conducted in-house analysis for the Democratic National Committee (DNC) posted an announcement that Russian government hackers had infiltrated the DNC' s computer and obtained access to documents. 19 On July 22, 2016, the day before the Democratic National Convention, WikiLeaks posted thousands of hacked DNC documents revealing sensitive internal deliberations.20 Soon thereafter, Hillary Clinton's campaign manager publicly contended that Russia had hacked the DNC emails and arranged their release in order to help candidate Trump.21 On July 26, 2016, the New York Times reported that U.S. " intelligence agencies ha[d] told the White House they now have ' high confidence' that the Russian government was behind the theft of emails and documents from the Democratic National Committee."22 Cam ai n, aides reacted with enthusiasm to reports of the hacks .23 discussed with Campaign officials that WikiLeaks would release the hacked material. Some witnesses said that Trump himself discussed the possibility of upcoming releases . . . . Michael Cohen, then-executive vice resident of the Trum Or anization and s ecial counsel to Trum , recalled hearin Within the Trum

Cohen recalled that Trump responded, "oh good, alright,"

Josh Rogin, Trump campaign guts GOP 's anti-Russia stance on Ukraine, Washington Post, Opinions (July 18, 2016). The Republican Platform events are described in Volume 1, Section IV.A.6, supra. 19

Bears in the Midst: Intrusion into the Democratic National Committee, CrowdStrike (June 15, 2016) (post originally appearing on June 14, 2016, according to records of the timing provided by CrowdStrike); Ellen Nakashima, Russian government hackers penetrated DNC, stole opposition research on Trump , Washington Post (June 14, 2016). 20

Tom Hamburger and Karen Tumulty, WikiLeaks releases thousands ofdocuments about Clinton and internal deliberations, Washington Post (July 22, 2016). 21

Amber Phillips, Clinton campaign manager: Russians leaked Democrats' emails to help Donald Trump , Washington Post (July 24, 2016). 22

David E. Sanger and Eric Schmitt, Spy Agency Consensus Grows That Russia Hacked D.N. C., New York Times (July 26, 2016). 23

Gates 4/ 10/18 302, at 5; Newman 8/23/ 18 302, at I.

Gates 4/11/18 302, at 2-3 (SM-2180998); Gates 10/25/ 18 302, at 2; see also Volume I, Section lll .D.1,supra. 25

Cohen 8/7/ 18 302, at 8; see also Volume 1, Section III.D. I , supra. According to Cohen, after W i k i L e a k ~ t o l e n DNC emails on July 22, 2016, Trump said to Cohen words to the Cohen 9/18/18 302, at 10. Cohen's role in the candidate's and later effect of, ~ 17

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26 and Harm to Ongoing Matter 2016 release of hacked documents, hes oke to Trump ; Manafort recall ed that Trump responded that Manafort should keep Trump u ~ t y campaign manager Rick Gates said that M a n a ~ s s u r e about information and that Manafort instructed G a t e s ~ status updates on u comin releases. 28 Around the same time, Gates was with Trump on a trip to an airport , and shortly after the call ended Trum~ told Gates that more releases of damaging 29 information would be coming. were discussed within the Campaign, 30 and in the summer of 2016, the Campaign was planning a communications strategy based on the possible release of Clinton emails by WikiLeaks. 31

lifiiii•irtJ•lit·Mh@MuHi -

3. The Trump Campaign Reacts to Allegations That Russia was Seeking to Aid Candidate Trump In the days that followed WikiLeaks's July 22, 2016 release of hacked DNC emails, the Trump Campaign publicly rejected suggestions that Russia was seeking to aid candidate Trump . On July 26, 2016, Trump tweeted that it was " [c]razy" to suggest that Russia was "dealing with Trump"32 and that "[f]or the record," he had "ZERO investments in Russia." 33 In a press conference the next day, July 27, 2016, Trump characterized "this whole thing with Russia" as "a total deflection" and stated that it was "farfetched" and "ridiculous." 34 Trump said that the assertion that Russia had hacked the emails was unproven, but stated that it would give him "no pause" if Russia had Clinton's emails. 35 Trump added, "Russia, if you' re listening, I hope you' re able to find the 30,000 emails that are missing. I think you will probably be rewarded

President's activities, and his own criminal conduct, is descriped in Volume II, Section 11.K, infra, and in Volume T, Section IV.A. I, supra. 26

Cohen 8/7/ 18 302, at 8.

. As explained in footnote 197 of Volume I, Section III.D. l.b, supra, this Office has included Manafort's account of these events because it aligns with those of other witnesses and is corroborated to that extent. 28

Gates 10/25/ 18 302, at 4.

Gates I 0/25/ 18 302, at 4.

Bannon 1/18/ 19 302, at 3.

Gates 4/11 / 18 302, at 1-2 (SM-2180998); Gates 10/25/ 18 302, at2 ( m e s s a ~ formed in June/Jul timeframe based on claims b Assan eon June 12, 2016, - - - ). 32

@realDonaldTrump 7/26/16 (6:47 p.m. ET) Tweet.

@rea!DonaldTrump 7/26/16 (6:50 p.m. ET) Tweet.

Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016).

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mightily by our press ." 36 Trump also said that "there's nothing that I can think of that I'd rather do than have Russia friendly as opposed to the way they are right now," and in response to a question about whether he would recognize Crimea as Russian territory and consider lifting sanctions, Trump replied, "We'll be looking at that. Yeah, we'll be looking. "37 During the press conference, Trump repeated "I have nothing to do with Russia" five times. He stated that "the closest [he] came to Russia" was that Russians may have purchased a home or condos from him. 39 He said that after he held the Miss Universe pageant in Moscow in 2013 he had be.en interested in working with Russian companies that "wanted to put a lot of money into developments in Russia" but " it never worked out." 40 He explained, " [t]rankly, I didn't want to do it for a couple of different reasons. But we had a major developer . .. that wanted to develop property in Moscow and other places. But we decided not to do it."41 The Trump Organization, however, had been pursuing a building project in Moscow-the Trump Tower Moscow projectfrom approximately September 2015 through June 2016, and the candidate was regularly updated on developments, including possible trips by Michael Cohen to Moscow to promote the deal and by Trump himself to finalize it.42 38

Cohen recalled speaking with Trump after the press conference about Trump' s denial of any business dealings in Russia, which Cohen regarded as untrue.4 3 Trump told Cohen that Trump Tower Moscow was not a deal yet and said, "Why mention it if it is not a deal?"44 According to Cohen, at around this time, in response to Trump's disavowal of connections to Russia, campaign

Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016). Within five hours of Trump's remark, a Russian intelligence service began targeting email accounts associated with Hillary Clinton for possible hacks. See Volume I, Section TIT, supra. In written answers submitted in this investigation, the President stated that he made the "Russia, if you're listening" statement "in jest and sarcastically, as was apparent to any objective observer." Written Responses of Donald J. Trump (Nov. 20, 2018), at 13 (Response to Question II, Part (d)). 37

Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016). In his written answers submitted in this investigation, the President said that his statement that "we'll be looking" at Crimea and sanctions "did not communicate any position." Written Responses of Donald J. Trump (Nov. 20, 2018), at 17 (Response to Question IV, Part (g)). 38

Donald Trump News Conference, Doral, Florida, C-SPAN (July 27, 2016).

The Trump Tower Moscow project and Trump's involvement in it is discussed in detail in Volume I, Section TV.A. I, supra, and Volume TT, Section TT.K, infra. 43

Cohen 9/18/ 18 302, at 4.

Cohen 9/ 18/18 302, at 4-5. 19

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advisors had developed a "party line" that Trump had no business with Russia and no connections to Russia. 45 In addition to denying any connections with Russia, the Trump Campaign reacted to reports of Russian election interference in aid of the Campaign by seeking to distance itself from Russian contacts. For example, in August 2016, foreign policy advisor J.D. Gordon declined an invitation to Russian Ambassador Sergey Kislyak's residence because the timing was "not optimal" in view of media reports about Russi~n interference.46 On August 19, 2016, Manafort was asked to resign amid media coverage scrutinizing his ties to a pro-Russian political party in Ukraine and links to Russian business. 47 And when the media published stories about Page's connections to Russia in September 2016, Trump Campaign officials terminated Page's association with the Campaign and told the press that he had played "no role" in the Campaign.48 On October 7, 2016, WikiLeaks released the first set of emails stolen by a Russian intelligence agency from Clinton Campaign chairman John Podesta. 49 The same day, the federal government announced that "the Russian Government directed the recent compromises of e-mails from US persons and institutions, including from US political organizations." 50 The government statement directly linked Russian hacking to the releases on WikiLeaks, with the goal of interfering with the presidential election, and concluded "that only Russia's senior-most officials could have authorized these activities" based on their "scope and sensitivity." 51 On October 11 , 2016, Podesta stated publicly that the FBI was investigating Russia's hacking and said that candidate Trump might have known in advance that the hacked emails were going to be released. 52 Vice Presidential Candidate Mike Pence was asked whether the Trump 45

Cohen 11 /20/18 302, at 1; Cohen 9/18/ 18 302, at 3-5. The formation of the " party line" is described in greater detail in Volume II, Section II.K, infra. 46

DJTFP00004953 (8/8/ 16 Email, Gordon to Pchelyakov) (stating that "[t]hese days are not optimal for us, as we are busily knocking down a stream of false media stories"). The invitation and Gordon's response are discussed in Volume I, Section IV.A.7.a, supra. 47 See, e.g., Amber Phillips, Paul Manafort's complicated ties to Ukraine, explained, Washington Post (Aug. 19, 2016) ("There were also a wave of fresh headlines dealing with investigations into [Manafort's] ties to a pro-Russian political party in Ukraine."); Tom Winter & Ken Dilanian, Donald Trump Aide Paul Manafort Scrutinized for Russian Business Ties, NBC (Aug. 18, 2016). Relevant events involving Manafort are discussed in Volume I, Section IV.A.8, supra. 48

Michael Isikoff, U.S. intel officials probe ties between Trump adviser and Kremlin, Yahoo News (Sep. 23, 2016); see, e.g., 9/25/ 16 Email, Hicks to Conway & Bannon; 9/23/ 16 Email, J. Miller to Bannon & S. Miller; Page 3/ 16/ 17 302, at 2. 49

@WikiLeaks 10/7/ 16 (4:32 p.m. ET) Tweet.

Joint Statement from the Department Of Homeland Security and Office of the Director of National Intelligence on Election Security, OHS (Oct. 7, 2016). 51

Joint Statement from the Department Of Homeland Security and Office of the Director of National Intelligence on Election Security, OHS (Oct. 7, 2016). 52

John Wagner & Anne Gearan, Clinton campaign chairman ties email hack to Russians, suggests Trump had early warning, Washington Post (Oct. 11, 2016). 20

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Campaign was "in cahoots" with WikiLeaks in releasing damaging Clinton-related information and responded, "Nothing could be further from the truth." 53

4. After the Election, Trump Continues to Deny Any Contacts or Connections with Russia or That Russia Aided his Election On November 8, 2016, Trump was elected President. Two days later, Russian officials told the press that the Russian government had maintained contacts with Trump' s "immediate entourage" during the campaign. 54 In response, Hope Hicks, who had been the Trump Campaign spokesperson, said, "We are not aware of any campaign representatives that were in touch with any foreign entities before yesterday, when Mr. Trump spoke with many world leaders." 55 Hicks gave an additional statement denying any contacts between the Campaign and Russia: "It never happened. There was no communication between the campaign and any foreign entity during the campaign." 56 On December 10, 2016, the press reported that U.S. intelligence agencies had " concluded that Russia interfered in last month 's presidential election to boost Do'nald Trump's bid for the White House." 57 Reacting to the story the next day, President-Elect Trump stated, "T think it's ridiculous. I think it's just another excuse."5 8 He continued that no one really knew who was responsible for the hacking, suggesting that the intelligence community had "no idea if it's Russia or China or somebody. It could be somebody sitting in a bed some place." 59 The President-Elect

Louis Nelson, Pence denies Trump camp in cahoots with WikiLeaks, Politico (Oct. 14, 2016).

Ivan Nechepurenko, Russian Officials Were in Contact With Trump Allies, Diplomat Says, New York Times (Nov. 10, 2016) (quoting Russian Deputy Foreign Minister Sergey Ryabkov saying, "[t]here were contacts" and "I cannot say that all, but a number of them maintained contacts with Russian representatives"); Jim Heintz & Matthew Lee, Russia eyes better ties with Trump; says contacts underway, Associated Press (Nov. 11, 2016) (quoting Ryabkov saying, "I don' t say that all of them, but a whole array of them supported contacts with Russian representatives"). 55

Ivan Nechepurenko, Russian Officials Were in Contact With Trump Allies, Diplomat Says, New York Times (Nov. 11, 2016) (quoting Hicks). 56

Jim Heintz & Matthew Lee, Russia eyes better ties with Trump; says contacts underway, Associated Press (Nov. l 0, 2016) (quoting Hicks). Hicks recalled that after she made that statement, she spoke with Campaign advisors Kellyanne Conway, Stephen Miller, Jason Miller, and probably Kushner and Bannon to ensure it was accurate, and there was no hesitation or pushback from any of them. Hicks 12/8/17 302, at 4. 57

Damien Gayle, CIA concludes Russia interfered to help Trump win election, say reports, Guardian (Dec. 10, 2016). 58

Chris Wallace Hosts "Fox News Sunday," Interview with President-Elect Donald Trump, CQ Newsmaker Transcripts (Dec. 11 , 2016). 59

Chris Wallace Hosts "Fox News Sunday," Interview with President-Elect Donald Trump , CQ Newsmaker Transcripts (Dec. 11, 2016).

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also said that Democrats were "putting [] out" the story of Russian interference "because they suffered one of the greatest defeats in the history of politics." 60 On December 18, 2016, Podesta told the press that the election was "distorted by the Russian intervention" and questioned whether Trump Campaign officials had been "in touch with the Russians." 61 The same day, incoming Chief of Staff Reince Priebus appeared on Fox News Sunday and declined to say whether the President-Elect accepted the intelligence community's determination that Russia intervened in the election. 62 When asked about any contact or coordination between the Campaign and Russia, Priebus said, "Even this question is insane. Of course we didn' t interface with the Russians." 63 Priebus added that "this whole thing is a spin job" and said, "the real question is, why the Democrats ... are doing everything they can to delegitimize the outcome of the election?"64 On December 29, 2016, the Obama Administration announced that in response to Russian cyber operations aimed at the U.S. election, it was imposing sanctions and other measures on several Russian individuals and entities.65 When first asked about the sanctions, President-Elect Trump said, "I think we ought to get on with our lives." 66 He then put out a statement that said " It's time for our country to move on to bigger and better things," but indicated that he would meet with intelligence community leaders the following week for a briefing on Russian interference.67 The briefing occurred on January 6, 2017.68 Following the briefing, the intelligence community released the public version of its assessment, which concluded with high confidence that Russia had intervened in the election through a variety of means with the goal of harming Clinton ' s

Â°Chris Wallace Hosts

"Fox News Sunday," Interview with President-Elect Donald Trump, CQ

Newsmaker Transcripts (Dec. l l, 2016). 61

David Morgan, Clinton campaign: It 's an 'open question' if Trump team colluded with Russia, Reuters Business Insider (Dec. 18, 2016). 62 Chris Wallace Hosts "Fox News Sunday, " Interview with Incoming White House Chief of Staff Reince Priebus, Fox News (Dec. 18, 20 l 6). 63

Chris Wallace Hosts "Fox News Sunday," Interview with Incoming White House Chief of Staff Reince Priebus, Fox News (Dec. 18, 2016). 64

Chris Wallace Hosts "Fox News Sunday," Interview with Incoming White House Chief of Staff Reince Priebus, Fox News (Dec. 18, 2016). 65

Statement by the President on Actions in Response to Russian Malicious Cyber Activity and Harassment, White House (Dec. 29, 2016); see also Missy Ryan et al., Obama administration announces measures to punish Russia/or 2016 election interference, Washington Post (Dec. 29, 2016). 66

John Wagner, Trump on alleged election interference by Russia: 'Get on with our lives,' Washington Post (Dec. 29, 2016). 67

Missy Ryan et al., Obama administration announces measures to punish Russia for 2016 election interference, Washington Post (Dec. 29, 2016). 68

Corney 11 / 15/ 17 302, at 3.

. 22

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electability. 69 The assessment further concluded with high confidence that Putin and the Russian government had developed a clear preference for Trump. 70 Several days later, BuzzFeed published unverified allegations compiled by former British intelligence officer Christopher Steele during the campaign about candidate Trump's Russia connections under the headline "These Reports Allege Trump Has Deep Ties To Russia." 71 In a press conference the next day, the President-Elect called the release "an absolute disgrace" and said, "I have no dealings with Russia. I have no deals that could happen in Russia, because we've stayed away .... So I have no deals, I have no loans and I have no dealings. We could make deals in Russia very easily ifwe wanted to, I just don't want to because I think that would be a conflict."72 Several advisors recalled that the President-Elect viewed stories about his Russian connections, the Russia investigations, and the intelligence community assessment of Russian interference as a threat to the legitimacy of his electoral victory.73 Hicks, for example, said that the President-Elect viewed the intelligence community assessment as his "Achilles heel" because, even if Russia had no impact on the election, people would think Russia helped him win, taking away from what he had accomplished. 74 Sean Spicer, the first White House communications director, recalled that the President thought the Russia story was developed to undermine the legitimacy of his election. 75 Gates said the President viewed the Russia investigation as an attack on the legitimacy of his win. 76 And Priebus recalled that when the intelligence assessment came out, the President-Elect was concerned people would question the legitimacy of his win .77

Office of the Director of National Intelligence, Russia's Influence Campaign Targeting the 20I 6 US Presidential Election, at 1 (Jan. 6, 2017). 70

Office of the Director of National Intelligence, Russia's Influence Campaign Targeting the 2016 US Presidential Election, at 1 (Jan. 6, 2017). 71

Ken Bensinger et al., These Reports Allege Trump Has Deep Ties To Russia, BuzzFeed (Jan. 10,

2017). 72

Donald Trump's News Conference: Full Transcript and Video, New York Times (Jan. 11 , 2017), available at https: //www.nytimes.com/2017/01 /11/us/politics/trump-press-conferencetranscri pt.htm 1. 73

Priebus 10/13/ 17 302, at 7; Hicks 3/ 13/ 18 302, at 18; Spicer 10/16/17 302, at 6; Bannon 2/ 14/18 302, at 2; Gates 4/18/18 302, at 3; see Pompeo 6/28/ 17 302, at 2 (the President believed that the purpose of the Russia investigation was to delegitimize his presidency). 74

Hicks 3/ 13/ 18 302, at 18.

Spicer 10/ 17/ 17 302, at 6.

Gates 4/18/18 302, at 3.

Priebus 10/ 13/ 17 302, at 7.

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The President's Conduct Concerning the Investigation of Michael Flynn Overview

During the presidential transition, incoming National Security Advisor Michael Flynn had two phone calls with the Russian Ambassador to the United States about the Russian response to U.S. sanctions imposed because of Russia's election interference. After the press reported on Flynn's contacts with the Russian Ambassador, Flynn lied to incoming Administration officials by saying he had not discussed sanctions on the calls. The officials publicly repeated those lies in press interviews. The FBI, which previously was investigating Flynn for other matters, interviewed him about the calls in the first week after the inauguration, and Flynn told similar lies to the FBI. On January 26, 2017, Department of Justice (DOJ) officials notified the White House that Flynn and the Russian Ambassador had discussed sanctions and that Flynn had been interviewed by the FBI. The next night, the President had a private dinner with FBI Director James Corney in which he asked for Corney's loyalty. On February 13, 2017, the President asked Flynn to resign . The following day, the President had a one-on-one conversation with Corney in which he said, "I hope you can see your way clear to letting this go, to letting Flynn go ."

Evidence 1. Incoming National Security Advisor Flynn Discusses Sanctions on Russia with Russian Ambassador Sergey Kislyak Shortly after the election, President-Elect Trump announced he would appoint Michael Flynn as his National Security Advisor. 78 For the next two months, Flynn played an active role on the Presidential Transition Team (PTT) coordinating policy positions and communicating with foreign government officials, including Russian Ambassador to the United States Sergey Kislyak. 79 On December 29, 2016, as noted in Volume II, Section II.A.4, supra, the Obama Administration announced that it was imposing sanctions and other measures on several Russian individuals and entities.80 That day, multiple members of the PTT exchanged emails about the sanctions and the impact they would have on the incoming Administration, and Flynn informed members of the PTT that he would be speaking to the Russian Ambassador later in the day. 81

Flynn 11 /16/17 302, at 7; President-Elect Donald .! Trump Selects US. Senator JeffSessions for Attorney General, Lt. Gen. Michael Flynn as Assistant to the President for National Security Affairs and US. Rep. Mike Pompeo as Director of the Central Intelligence Agency, President-Elect Donald J. Trump Press Release (Nov. 18, 2016); see also, e.g., Bryan Bender, Trump names Mike Flynn national security adviser, Politico, (Nov. 17, 2016). 79

Flynn 11/16/17 302, at 8-14; Priebus 10/13/17 302, at 3-5.

Statement by the President on Actions in Response to Russian Malicious Cyber Activity and Harassment, The White House, Office of the Press Secretary (Dec. 29, 2016). 81

12/29/16 Email, O'Brien to McFarland et al.; 12/29/ 16 Email, Bossert to Flynn et al.; 12/29/ 16 Email, McFarland to Flynn et al.; SFOOOOO 1 (12/29/16 Text Message, Flynn to Flaherty) ("Tit for tat w Russia not good. Russian AMBO reaching out to me today."); Flynn 1/19/ 18 302, at 2.

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Flynn, who was in the Dominican Republic at the time, and K.T. McFarland, who was slated to become the Deputy National Security Advisor and was at the Mar-a-Lago resort in Florida with the President-Elect and other senior staff, talked by phone about what, if anything, Flynn should McFarland had spoken with incoming communicate to Kislyak about the sanctions.82 Administration officials about the sanctions and Russia's possible responses and thought she had mentioned in those conversations that Flynn was scheduled to speak with Kislyak. 83 Based on those conversations, McFarland informed Flynn that incoming Administration officials at Mar-aLago did not want Russia to escalate the situation. 84 At 4:43 p.m. that afternoon, McFarland sent an email to several officials about the sanctions and informed the group that "Gen [F]lynn is talking to russian ambassador this evening." 85 Approximately one hour later, McFarland met with the President-Elect and senior officials and briefed them on the sanctions and Russia's possible responses.86 Incoming Chief of Staff Reince Priebus recalled that McFarland may have mentioned at the meeting that the sanctions situation could be "cooled down" and not escalated. 87 McFarland recalled that at the end of the meeting, someone may have mentioned to the President-Elect that Flynn was speaking to the Russian Ambassador that evening. 88 McFarland did not recall any response by the PresidentElect.89 Priebus recalled that the President-Elect viewed the sanctions as an attempt by the Obama Administration to embarrass him by delegitimizing his election .90 Immediately after discussing the sanctions with McFarland on December 29, 2016, Flynn called Kislyak and requested that Russia respond to the sanctions only in a reciprocal manner, 92 without escalating the situation. 91 After the call, Flynn briefed McFarland on its substance. Flynn told McFarland that the Russian response to the sanctions was not going to be escalatory because Russia wanted a good relationship with the Trump Administration. 93 On December 30, 2016, Russian President Vladimir Putin announced that Russia would not take retaliatory measures 82

Statement of Offense at 2-3, United States v. Michael T. Flynn, 1: l 7-cr-232 (D.D.C. Dec. 1, 2017), Doc. 4 (Flynn Statement of Offense); Flynn 11/17/17 302, at 3-4; Flynn 11/20117 302, at 3; McFarland 12/22/ 17 302, at 6-7. 83

McFarland 12/22/17 302, at 4-7 (recalling discussions about this issue with Bannon and Priebus).

Flynn Statement of Offense, at 3; Flynn 11/17/ 17 302, at 3-4; McFarland 12/22/17 302, at 6-7.

12/29/ 16 Email, McFarland to Flynn et al.

McFarland 12/22/17 302, at 7.

Priebus I/18/18 302, at 3.

McFarland 12/22/ 17 302, at 7. Priebus thought it was possible that McFarland had mentioned Flynn's scheduled call with Kislyak at this meeting, although he was not certain . Priebus 1/18/18 302, at 3. 89

McFarland 12/22/ 17 302, at 7.

Priebus 1/ 18/ 18 302, at 3.

Flynn Statement of Offense, at 3; Flynn 11/17/17 302, at 3-4.

Flynn Statement of Offense, at 3; McFarland 12/22/ 17 302, at 7-8; Flynn 11 / 17/17 302, at 4.

McFarland 12/22/ 17 302, at 8. 25

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in response to the sanctions at that time and would instead "plan ... further steps to restore RussianUS relations based on the policies of the Trump Administration."94 Following that announcement, the President-Elect tweeted, "Great move on delay (by V. Putin) - I always knew he was very smart!"95 On December 31, 2016, Kislyak called Flynn and told him that Flynn' s request had been received at the highest levels and Russia had chosen not to retaliate in response to the request. 96 Later that day, Flynn told McFarland about this follow-up conversation with Kislyak and Russia' s decision not to escalate the sanctions situation based on Flynn's request. 97 McFarland recalled that Flynn thought his phone call had made a difference.98 Flynn spoke with other incoming Administration officials that day, but does not recall whether they discussed the sanctions. 99 Flynn recalled discussing the sanctions issue with incoming Administration official Stephen Bannon the next day. 10 Flynn said that Bannon appeared to know about Flynn's conversations with Kislyak, and he and Bannon agreed that they had " stopped the train on Russia's response" to the sanctions. 101 On January 3, 2017, Flynn saw the President-Elect in person and thought they discussed the Russian reaction to the sanctions, but Flynn did not have a specific recollection of telling the President-Elect about the substance of his calls with Kislyak. 102

Â°

Members of the intelligence community were surprised by Russia's decision not to retaliate in response to the sanctions.103 When analyzing Russia's response, they became aware of Flynn 's discussion of sanctions with Kislyak. 104 Previously, the FBI had opened an investigation of Flynn based on his relationship with the Russian govemment. 105 Flynn's contacts with Kislyak became a key component of that investigation. 106

Statement by the President of Russia, President of Russia (Dec. 30, 2016) 12/3 0/ 16.

@realDonaldTrump 12/30/16 (2:41 p.m. ET) Tweet.

Flynn 1/19/18 302, at 3; Flynn Statement of Offense, at 3.

Flynn 1/19/18 302, at 3; Flynn 11/17/17 302, at 6; McFarland 12/22/17 302, at 10; Flynn Statement of Offense, at 3. 98

McFarland 12/22/ 17 302, at 1O; see Flynn 1/ 19/18 302, at 4.

Flynn 11/17/17 302, at 5-6.

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Flynn I / 19/ 18 302, at 4-5. Bannon recalled meeting with Flynn that day, but said he did not remember discussing sanctions with him. Bannon 2/ 12/18 302, at 9. 101

Flynn 11 /2 1/17 302, at 1; Flynn 1/ 19/ 18 302, at 5.

102

Flynn 1/19/18 302, at 6; Flynn 11/17/17 302, at 6.

103

McCord 7/ 17/ 17 302, at 2.

104

McCord 7/ 17/17 302, at 2.

105

McCord 7/17/ 17 302, at 2-3; Corney 11 / 15/17 302, at 5.

106

McCord 7/ 17/ 17 302, at2-3.

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2. President-Elect Trump is Briefed on the Intelligence Community ' s Assessment of Russian Interference in the Election and Congress Opens ElectionInterference Investigations On January 6, 2017, as noted in Volume II, Section 11.A.4, supra, intelligence officials briefed President-Elect Trump and the incoming Administration on the intelligence community's assessment that Russia had interfered in the 2016 presidential election. 107 When the briefing concluded, Corney spoke with the President-Elect privately to brief him on unverified, personally sensitive alle gations compiled by Steele. 108 According to a memorandum Corney drafted immediately after their private discussion, the President-Elect began the meeting by telling Corney he had conducted himself honorably over the prior year and had a great reputation. 109 The President-Elect stated that he thought highly of Corney, looked forward to working with him, and hoped that he planned to stay on as FBI director. 11 Corney responded that he intended to continue serving in that role. 111 Corney then briefed the President-Elect on the sensitive material in the Steele reporting. 11 2 Corney recalled that the President-Elect seemed defensive, so Corney decided

107

Corney 11 / 15/ 17 302, at 3; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 1-2). 109

Corney 1/7/ 17 Memorandum, at I . Corney began drafting the memorandum summarizing the meeting immediately after it occurred. Corney 11/ 15/17 302, at 4. He finished the memorandum that evening and finalized it the following morning. Corney 11 /15/17 302, at 4. 11

Corney 1/7/ 17 Memorandum, at 1; Corney 11/15/ 17 302, at 3. Corney identified several other occasions in January 2017 when the President reiterated that he hoped Corney would stay on as FBI director. On January 11 , President-Elect Trump called Corney to discuss the Steele reports and stated that he thought Corney was doing great and the President-Elect hoped he would remain in his position as FBI director. Corney 11 /15/ 17 302, at 4; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (testimony of James B. Corney, former Director of the FBI), CQ Cong. Transcripts, at 90. ("[D]uring that call, he asked me again, 'Hope you're going to stay, you're doing a great job.' And I told him that I intended to."). On January 22, at a White House reception honoring law enforcement, the President greeted Corney and said he looked forward to working with him. Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (testimony of James B. Corney, former Director of the FBI), CQ Cong. Transcripts, at 22. And as discussed in greater detail in Volume TT, Section 11.D, infra, on January 27, the President invited Corney to dinner at the White House and said he was glad Corney wanted to stay on as FBI Director. 11 1

Corney 1/7/17 Memorandum, at 1; Corney 11 / 15/ 17 302, at 3.

112

Corney 1/7/ 17 Memorandum, at 1-2; Corney 11 /15/ 17 302, at 3. Corney' s briefing included the Steele reporting's unverified allegation that the Russians had compromising tapes of the President involving conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant. During the 2016 presidential campaign, a similar claim may have reached candidate Trump. On October 30, 2016, Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, "Stopped flow of tapes from Russia but not sure if there's anything else. Just so you know . . .." 10/30/ 16 Text Message, Rtskhiladze to Cohen. Rtskhiladze said "tapes" referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host 27

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to assure him that the FBI was not investigating him personally. 113 Corney recalled he did not want the President-Elect to think of the conversation as a "J. Edgar Hoover rnove." 114 On January 10, 2017, the media reported that Corney had briefed the President-Elect on the Steele reporting, 115 and BuzzFeed News published information compiled by Steele online, stating that the information included "specific, unverified, and potentially unverifiable allegations of contact between Trump aides and Russian operatives." 116 The next day, the President-Elect expressed concern to intelligence community leaders about the fact that the information had leaked and asked whether they could make public statements refuting the allegations in the Steele reports. 117 In the following weeks, three Congressional committees opened investigations to examine Russia's interference in the election and whether the Trump Campaign had colluded with Russia. 118 On January 13, 2017, the Senate Select Committee on Intelligence (SSCT) announced that it would conduct a bipartisan inquiry into Russian interference in the election, including any "links between Russia and individuals associated with political campaigns." 119 On January 25, 2017, the House Permanent Select Committee on Intelligence (HPSCI) announced that it had been conducting an investigation into Russian election interference and possible coordination with the political campaigns. 120 And on February 2, 2017, the Senate Judiciary Committee announced that it too would investigate Russian efforts to intervene in the election.121

the 2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/ 18 302, at 12. Cohen said he spoke to Trump about the issue after receiving the texts from Rtskhiladze. Cohen 9/ 12/18 302, at 13. Rtskhiladze said he was told the tapes were fake, but he did not communicate that to Cohen. Rtskhiladze 5/10/ 18 302, at 7. 113 Corney I l/15/17 302, at 3-4; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James 8. Corney, former Director of the FBI, at 2). 114

Corney 11 / 15/ 17 302, at 3.

115

See, e.g. , Evan Perez et al., Intel chiefs presented Trump with claims of Russian efforts to compromise him, CNN (Jan. I 0, 2017; updated Jan. 12, 2017). 116

Ken Bensinger et al., These Reports Allege Trump Has Deep Ties To Russia, BuzzFeed News (Jan. 10, 2017). 117

See I/11 /17 Email, Clapper to Corney ("He asked ifT could put out a statement. He would prefer of course that I say the documents are bogus, which, of course, I can' t do."); 1/12/17 Email, Corney to Clapper ("He called me at 5 yesterday and we had a very similar conversation."); Corney 11 / 15/17 302, at 4-5. 11 8

See 2016 Presidential El.ection Investigation Fast Facts , CNN (first published Oct. 12, 2017; updated Mar. 1, 20 I 9) (summarizing starting dates of Russia-related investigations). 119

Joint Statement on Committee Inquiry into Russian Intelligence Activities, SSC[ (Jan. 13, 2017).

120

Joint Statement on Progress ofBipartisan HP SCI Inquiry into Russian Active Measures, HP SCI (Jan. 25, 2017). 121

Joint Statement from Senators Graham and Whitehouse on Investigation into Russian Influence on Democratic Nations' Elections (Feb. 2, 2017).

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3. Flynn Makes False Statements About his Communications with Kislyak to Incoming Administration Officials, the Media, and the FBI On January 12, 2017, a Washington Post columnist reported that Flynn and Kislyak communicated on the day the Obama Administration announced the Russia sanctions. 122 The column questioned whether Flynn had said something to "undercut the U.S. sanctions" and whether Flynn's communications had violated the letter or spirit of the Logan Act. 123 President-Elect Trump called Priebus after the story was published and expressed anger about it. 124 Priebus recalled that the President-Elect asked, "What the hell is this all about?" 125 Priebus called Flynn and told him that the President-Elect was angry about the reporting on Flynn's conversations with Kislyak. 126 Flynn recalled that he felt a lot of pressure because Priebus had spoken to the "boss" and said Flynn needed to "kill the story." 127 Flynn directed McFarland to call the Washington Post columnist and inform him that no discussion of sanctions had occurred. 128 McFarland recalled that Flynn said words to the effect of, "I want to kill the story." 129 McFarland made the call as Flynn had requested although she knew she was providing false information, and the Washington Post updated the column to reflect that a "Trump official" had denied that Flynn and Kislyak discussed sanctions. 130 When Priebus and other incoming Administration officials questioned Flynn internally about the Washington Post column, Flynn maintained that he had not discussed sanctions with Kislyak. 131 Flynn repeated that claim to Vice President-Elect Michael Pence and to incoming press secretary Sean Spicer. 132 In subsequent media interviews in mid-January, Pence, Priebus, and

122

David Ignatius, Why did Obama dawdle on Russia's hacking?, Washington Post (Jan. 12, 2017).

123

David Ignatius, Why did Obama dawdle on Russia's hacking?, Washington Post (Jan. 12, 2017). The Logan Act makes it a crime for "[a]ny citizen of the United States, wherever he may be" to "without authority of the United States, directly or indirectly commence[] or carr[y] on any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the rrteasures of the United States." 18 U.S.C. ยง 953. 124

Priebus 1/18/18 302, at 6.

125

Priebus 1/18/ 18 302, at 6.

126

Priebus 1/ 18/18 302, at 6.

127

Flynn 11/21/17 302, at I; Flynn 11/20/17 302, at 6.

128

McFarland 12/22/17 302, at 12-13.

129

McFarland 12/22/17 302, at 12.

130

McFarland 12/22/ 17 302, at 12-13; McFarland 8/29/ 17 302, at 8; see David Ignatius, Why did Obama dawdle on Russia's hacking?, Washington Post (Jan. 12, 2017). 131

Flynn 11/17/17 302, at I, 8; Flynn 1/19/18 302, at 7; Priebus 10/ 13/17 302, at 7-8; S. Miller 8/31/17 302, at 8-11. 132

Flynn 11/17/17 302, at I, 8; Flynn 1/ 19/18 302, at 7; S. Miller 8/31/17 302, at 10-11.

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Spicer denied that Flynn and Kislyak had discussed sanctions, basing those denials on their conversations with Flynn. 133 The public statements of incoming Administration officials denying that Flynn and Kislyak had discussed sanctions alarmed senior DOJ officials, who were aware that the statements were not true. 134 Those officials were concerned that Flynn had lied to his colleagues-who in turn had unwittingly misled the American public-creating a compromise situation for Flynn because the Department of Justice assessed that the Russian government could prove Flynn lied. 135 The FBT investigative team also believed that Flynn's calls with Kislyak and subsequent denials about discussing sanctions raised potential Logan Act issues and were relevant to the FBJ's broader Russia investigation . 136 On January 20, 2017, President Trump was inaugurated and Flynn was sworn in as National Security Advisor. On January 23, 2017, Spicer delivered his first press briefing and stated that he had spoken with Flynn the night before, who confirmed that the calls with Kislyak were about topics unrelated to sanctions. 137 Spicer' s statements added to the Department of Justice's concerns that Russia had leverage over Flynn based on his lies and could use that derogatory information to compromise him. 138 On January 24, 2017, Flynn agreed to be interviewed by agents from the FBI. 139 During the interview, which took place at the White House, Flynn falsely stated that he did not ask Kislyak to refrain from escalating the situation in response to the sanctions on Russia imposed by the Obama Administration. 14 Flynn also falsely stated that he did not remember a follow-up conversation in which Kislyak stated that Russia had chosen to moderate its response to those sanctions as a result of Flynn ' s request. 141

133

Face the Nation Interview with Vice President-Elect Pence, CBS (Jan. 15, 2017); Julie Hirschfield Davis et al., Trump National Security Advisor Called Russian Envoy Day Before Sanctions Were Imposed, Washington Post (Jan. 13, 2017); Meet the Press Interview with Reince Priebus, NBC (Jan. 15, 2017). 134

Yates 8/ 15/ 17 302, at 2-3 ; McCord 7/ 17/17 302, at 3-4; McCabe 8/ 17/ 17 302, at 5 (DOJ officials were "really freaked out about it"). 135

Yates 8/15/ 17 302, at 3; McCord 7/ 17/ 17 302, at 4.

136

McCord 7/17/17 302, at 4; McCabe 8/ 17/17 302, at 5-6.

137

Sean Spicer, White House Daily Briefing, C-SPAN (Jan. 23 , 2017).

138

Yates 8/1 5/ 17 302, at 4; Axelrod 7/20/ 17 302, at 5.

139

Flynn Statement of Offense, at 2.

°Flynn Statement of Offense, at 2.

14 1

Flynn Statement of Offense, at 2. On December 1, 2017, Flynn admitted to making these false statements and pleaded guilty to violating 18 U.S.C. § 1001 , which makes it a crime to knowingly and willfully " make[] any materially false, fictitious, or fraudulent statement or representation" to federal law enforcement officials. See Volume I, Section IV.A.7, supra. 30

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4. DOJ Officials Notify the White House of Their Concerns About Flynn On January 26, 2017, Acting Attorney General Sally Yates contacted White House Counsel Donald McGahn and informed him that she needed to discuss a sensitive matter with him in person. 142 Later that day, Yates and Mary McCord, a senior national security official at the Department of Justice, met at the White House with McGahn and White House Counsel ' s Office attorney James Burnham. 143 Yates said that the public statements made by the Vice President denying that Flynn and Kislyak discussed sanctions were not true and put Flynn in a potentially compromised position because the Russians would know he had lied.144 Yates disclosed that Flynn had been interviewed by the FBI. 145 She declined to answer a specific question about how Flynn had performed during that interview, 146 but she indicated that Flynn's statements to the FBI were similar to the statements he had made to Pence and Spicer denying that he had discussed sanctions. 147 McGahn came away from the meeting with the impression that the FBI had not pinned Flynn down in lies, 148 but he asked John Eisenberg, who served as legal advisor to the National Security Council, to examine potential legal issues raised by Flynn's FBI interview and his contacts with Kislyak. 149 That afternoon, McGahn notified the President that Yates had come to the White House to discuss concerns about Flynn.150 McGahn described what Yates had told him, and the President asked him to repeat it, so he did. 15 1 McGahn recalled that when he described the FBI interview of Flynn, he said that Flynn did not disclose having discussed sanctions with Kislyak, but that there may not have been a clear violation of 18 U.S.C. ยง l 001. 152 The President asked about Section l 00 l , and McGahn explained the law to him, and also explained the Logan Act. 15 3 The President 142

Yates 8/ 15/17 302, at 6.

143

Yates 8/15/ 17 302, at 6; McCord 7/17/17 302, at 6; SCR015 000198 (2/ 15/ 17 Draft Memorandum to file from the Office of the Counsel to the President). 144

Yates 8/ 15/ 17 302, at 6-8; McCord 7/17/ 17 302, at 6-7; Burnham 11/3/17 302, at 4; SCRO 15_000198 (2/ 15/17 Draft Memorandum to file from the Office of the Counsel to the President). 145

McGahn 11/30/17 302, at 5; Yates 8/15/ 17 302, at 7; McCord 7/17/ 17 302, at 7; Burnham 11 /3/17 302, at 4. 146

Yates 8/15/17 302, at 7; McCord 7/17/17 302, at 7.

147

SCR015_000198 (2/15/17 Draft Memorandum to file fr~m the Office of the Counsel to the President); Burnham 11/3/17 302, at 4. 148

McGahn 11/30/ 17 302, at 5.

149

SCRO 15 000198 (2/ 15/ 17 Draft Memorandum to file from the Office of the Counsel to the President); McGahn 11 /30/17 302, at 6, 8. 150

McGahn 11/30/17 302, at 6; SCR015_000278 (White House Counsel's Office Memorandum re: "Flynn Tick Tock" ) (on January 26, "McGahn IMMEDIATELY advises POTUS"); SCR015_000198 (2/ 15/ 17 Draft Memorandum to file from the Office of the Counsel to the President). 151

McGahn 11/30/ 17 302, at 6.

152

McGahn 11/30/17 302, at 7.

153

McGahn 11 /30/17 302, at 7.

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instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. 154 Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, "not again, this guy, this stuff." 155 That evening, the President dined with several senior advisors and asked the group what they thought about FBI Director Comey. 156 According to Director of National Intelligence Dan Coats, who was at the dinner, no one openly advocated terminating Corney but the consensus on him was not positive. 157 Coats told the group that he thought Corney was a good director. 158 Coats encouraged the President to meet Corney face-to-face and spend time with him before making a decision about whether to retain him. 159 5. McGahn has a Follow-Up Meeting About Flynn with Yates; President Trump has Dinner with FBI Director Corney The next day, January 27, 2017, McGahn and Eisenberg discussed the results of Eisenberg's initial legal research into Flynn's conduct, and specifically whether Flynn may have violated the Espionage Act, the Logan Act, or 18 U.S.C. § 1001. 160 Based on his preliminary research, Eisenberg informed McGahn that there was a possibility that Flynn had violated 18 U.S.C. § I 001 and the Logan Act. 161 Eisenberg noted that the United States had never successfully prosecuted an individual under the Logan Act and that Flynn could have possible defenses, and

154

McGahn 11/30/ 17 302, at 7; SCRO I5_000198-99 (2/ 15/ 17 Draft Memorandum to file from the Office of the Counsel to the President). 155

Priebus I 0/13/17 302, at 8. Several witnesses said that the President was unhappy with Flynn for other reasons at this time. Bannon said that Flynn's standing with the President was not good by December 2016. Bannon 2/ 12/18 302, at 12. The President-Elect had concerns because President Obama had warned him about Flynn shortly after the election. Bannon 2/ 12/18 302, at 4-5; Hicks 12/8/ 17 302, at 7 (President Obama's comment sat with President-Elect Trump more than Hicks expected). Priebus said that the President had become unhappy with Flynn even before the story of his calls with Kislyak broke and had become so upset with Flynn that he would not look at him during intelligence briefings. Priebus 1/18/ 18 302, at 8. Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as "being on thin ice" by early February 2017. Hicks 12/8/ 17 302, at 7, 10. 156

Coats 6/14/ 17 302, at 2.

157

Coats 6/ 14/ 17 302, at 2.

158

Coats 6/14/17 302, at 2.

159

Coats 6/14/17 302, at 2.

160

SCRO 15_000199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); McGahn 11/30/ 17 302, at 8. 161

SCR015_000199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); Eisenberg 11 /29/17 302, at 9.

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told McGahn that he believed it was unlikely that a prosecutor would pursue a Logan Act charge under the circumstances. 162 That same morning, McGahn asked Yates to return to the White House to discuss Flynn again. 163 In that second meeting, McGahn expressed doubts that the Department of Justice would bring a Logan Act prosecution against Flynn, but stated that the White House did not want to take action that would interfere with an ongoing FBI investigation of Flynn. 164 Yates responded that Department of Justice had notified the White House so that it could take action in response to the information provided. 165 McGahn ended the meeting by asking Yates for access to the underlying information the Department of Justice possessed pertaining to Flynn's discussions with Kislyak. 166 Also on January 27, the President called FBI Director Corney and invited him to dinner that evening. 167 Priebus recal led that before the dinner, he told the President something like, "don't talk about Russia, whatever you do," and the President promised he would not talk about Russia at the dinner. 168 McGahn had previously advised the President that he should not communicate directly with the Department of Justice to avoid the perception or reality of political interference in law enforcement. 169 When Bannon learned about the President's planned dinner with Corney, he suggested that he or Priebus also attend, but the President stated that he wanted to dine with Corney alone.17 Corney said that when he arrived for the dinner that evening, he was surprised and concerned to see that no one else had been invited. 171

Â°

162

SCR015_000199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); Eisenberg I I /29/ 17 302, at 9. 163

SCR015 000199 (2/ 15/ 17 Draft Memorandum to file from the Office of the Counsel to the President); McGahn 11/30/17 302, at 8; Yates 8/15/17 302, at 8. 164

Yates 8/ 15/17 302, at 9; McGahn 11/30/17 302, at 8.

165 Yates 8/15/17 302, at 9; Burnham 11/3/17 302, at 5; see SCR015_00199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President) ("Yates was unwilling to confirm or deny that there was an ongoing investigation but did indicate that the Department of Justice would not object to the White House taking action against Flynn."). 166

Yates 9/15/17 302, at 9; Burnham 11 /3/17 302, at 5. In accordance with McGahn's request, the Department of Justice made the underlying infonnation available and Eisenberg viewed the information in early February. Eisenberg 11 /29/ 17 302, at 5; FBI 2/7/17 Electronic Communication, at I (documenting 2/2/ 17 meeting with Eisenberg). 167

Corney 11/15/17 302, at 6; SCR012b_000001 (President's Daily Diary, 1/27/17); Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 2-3). 168

Priebus 10/ 13/17 302, at 17.

169

See McGahn 11/30/17 302, at 9; Dhillon 11 /21 /17 302, at 2; Bannon 2/12/18 302, at 17.

170

Bannon 2/12/18 302, at 17.

171

Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, fonner Director of the FBI, at 3); see Corney 11/15/17 302, at 6.

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Corney provided an account of the dinner in a contemporaneous memo, an interview with this Office, and congressional testimony. According to Corney's account of the dinner, the President repeatedly brought up Corney' s future, asking whether he wanted to stay on as FBI director. 172 Because the President had previously said he wanted Corney to stay on as FBI director, Corney interpreted the President's comments as an effort to create a patronage relationship by having Corney ask for his job. 173 The President also brought up the Steele reporting that Corney had raised in the January 6, 2017 briefing and stated that he was thinking about ordering the FBI to investigate the allegations to prove they were false. 174 Corney responded that the President should think carefully about issuing such an order because it could create a narrative that the FBI was investigating him personally, which was incorrect. 175 Later in the dinner, the President brought up Flynn and said, "the guy has serious judgment issues." 176 Corney did not comment on Flynn and the President did not acknowledge any FBI interest in or contact with Flynn. 177 According to Corney's account, at one point during the dinner the President stated, "I need loyalty, I expect loyalty." 178 Corney did not respond and the conversation moved on to other topics, but the President returned to the subject of Corney's job at the end of the dinner and repeated, "I need loyalty." 179 Corney responded, "You will always get honesty from me." 180 The

172

Corney 11 / 15/ 17 302, at 7; Corney l/28/17 Memorandum, at 1, 3; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBT, at 3). 173

Corney 11/15/ 17 302, at 7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record ofJames B. Corney, former Director of the FBI, at 3). 174

Corney 1/28/17 Memorandum, at 3; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 4). 175

Corney 1/28/17 Memorandum, at 3; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 4). 176

Corney 1/28/ 17 Memorandum, at 4; Corney 11/15/ 17 302, at 7.

177

Corney 1/28/ 17 Memorandum, at 4; Corney 11 /15/17 302, at 7.

178

Corney 1/28/18 Memorandum, at 2; Corney 11/15/ 17 302, at 7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 3). 179

Corney 1/28/17 Memorandum, at 3; Corney 11 / 15/17 302, at 7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 3-4).

Â° Corney 1/28/17 Memorandum, at 3; Corney 11/15/17 302, at 7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 4). 18

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President said, "That's what I want, honest loyalty." 181 Corney said, "You will get that from me."1s2

After Corney's account of the dinner became public, the President and his advisors disputed that he had asked for Corney' s loyalty.183 The President also indicated that he had not invited Corney to dinner, telling a reporter that he thought Corney had "asked for the dinner" because "he wanted to stay on." 184 But substantial evidence corroborates Corney' s account of the dinner invitation and the request for loyalty. The President's Daily Diary confirms that the President "extend[ed] a dinner invitation" to Corney on January 27. 185 With respect to the substance of the dinner conversation, Corney documented the President's request for loyalty in a memorandum he began drafting the night of the dinner; 186 senior FBI officials recall that Corney told them about the loyalty request shortly after the dinner occurred; 187 and Corney described the request while 181

Corney 1/28/ 17 Memorandum, at 3; Corney 11/15/17 302, at 7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 4). 182

Corney 1/28/ 17 Memorandum, at 3; Corney 11 I 15/17 302, at 7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 4). 183 See, e.g. , Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Camey Demurred. , New York Times (May 11, 2017) (quoting Sarah Sanders as saying, "[The President] would never even suggest the expectation of personal loyalty"); Ali Vitali, Trump Never Asked for Camey's Loyalty, President's Personal Lawyer Says, NBC (June 8, 2017) (quoting the President's personal counsel as saying, "The president also never told Mr. Corney, 'I need loyalty, T expect loyalty,' in form or substance."); Remarks by President Trump in Press Conference, White House (June 9, 2017) ("I hardly know the man. I'm not going to say ' Twant you to pledge allegiance.' Who would do that? Who would ask a man to pledge allegiance under oath?"). In a private conversation with Spicer, the President stated that he had never asked for Corney's loyalty, but added that if he had asked for loyalty, "Who cares?" Spicer I 0/ 16/17 302, at 4. The President also told McGahn that he never said what Corney said he had. McGahn 12/12/17 302, at 17. 184

Interview of Donald J Trump, NBC (May 11 , 2017).

185

SCRO l 2b_ 000001 (President's Daily Diary, 1/27/17) (reflecting that the President called Corney in the morning on January 27 and "[t]he purpose of the call was to extend a dinner invitation"). In addition, two witnesses corroborate Corney's account that the President reached out to schedule the dinner, without Corney having asked for it. Priebus 10/ 13/ 17 302, at 17 (the President asked to schedule the January 27 dinner because he did not know much about Corney and intended to ask him whether he wanted to stay on as FBI Director); Rybicki 11 /21/18 302, at 3 (recalling that Corney told him about the President's dinner invitation on the day of the dinner). 186

Corney 11 / 15/ 17 302, at 8; Hearing on Russian Election Interference Before the Senate Select Intelligence Cammi/lee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 4). 187 McCabe 8/17/17 302, at 9-1 O; Rybicki 11/21/18 302, at 3. After leaving the White House, Corney called Deputy Director of the FBI Andrew McCabe, summarized what he and the President had discussed, including the President's request for loyalty, and expressed shock over the President's request. McCabe 8/17/17 302, at 9. Corney also convened a meeting with his senior leadership team to discuss what the President had asked of him during the dinner and whether he had handled the request for loyalty properly. McCabe 8/17/17 302, at 10; Rybicki 11 /21/18 302, at 3. In addition, Corney distributed his

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under oath in congressional proceedings and in a subsequent interview with investigators subject to penalties for lying under 18 U.S.C. ยง 100 I. Corney's memory of the details of the dinner, including that the President requested loyalty, has remained consistent throughout. 188 6. Flynn ' s Resignation On February 2, 2017, Eisenberg reviewed the underlying information relating to Flynn's calls with Kislyak. 189 Eisenberg recalled that he prepared a memorandum about criminal statutes that could apply to Flynn 's conduct, but he did not believe the White House had enough information to make a definitive recommendation to the President. 190 Eisenberg and McGahn discussed that Eisenberg's review of the underlying information confirmed his preliminary conclusion that Flynn was unlikely to be prosecuted for violating the Logan Act. 191 Because White House officials were uncertain what Flynn had told the FBI, however, they could not assess his exposure to prosecution for violating 18 U.S.C. ยง 1001. 192 The week of February 6, Flynn had a one-on-one conversation with the President in the Oval Office about the negative media coverage of his contacts with Kislyak.193 Flynn recalled that the President was upset and asked him for information on the conversations. 194 Flynn listed the specific dates on which he remembered speaking with Kislyak, but the President corrected one of the dates he listed. 195 The President asked Flynn what he and Kislyak discussed and Flynn responded that he might have talked about sanctions. 196

memorandum documenting the dinner to his senior leadership team, and McCabe confirmed that the memorandum captured what Corney said on the telephone call immediately following the dinner. McCabe 8/ 17/17 302, at 9-10. 188

There also is evidence that corroborates other aspects of the memoranda Corney wrote documenting his interactions with the President. For example, Corney recalled, and his memoranda reflect, that he told the President in his January 6, 2017 meeting, and on phone calls on March 30 and April 11, 2017, that the FBI was not investigating the President personally. On May 8, 2017, during White House discussions about firing Corney, the President told Rosenstein and others that Corney had told him three times that he was not under investigation, including once in person and twice on the phone. Gauhar-000058 (Gauhar 5/ 16/17 Notes). 189

Eisenberg 11/29/ 17 302, at 5; FBI 2/7/17 Electronic Communication, at I (documenting 2/2/17 meeting with Eisenberg). 190

Eisenberg 11 /29/17 302, at 6.

191

Eisenberg 11/29/17 302, at 9; SCRO 15_ 000200 (2/ 15/17 Draft Memorandum to file from the Office of the Counsel to the President). 192

Eisenberg 11 /29/ 17 302, at 9.

193

Flynn 11/21/17 302, at 2.

194

Flynn 11/21 /17 302, at 2.

195

Flynn 11/21 / 17 302, at 2.

196

Flynn 11/21/17 302, at 2-3.

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On February 9, 2017, the Washington Post reported that F lynn discussed sanctions with Kislyak the month before the President took office. 197 After the publication of that story, Vice President Pence learned of the Department of Justice's notification to the White House about the content of Flynn's calls. 198 He and other advisors then sought access to and reviewed the underlying information about Flynn's contacts with Kislyak. 199 FBI Deputy Director Andrew McCabe, who provided the White House officials access to the information and was present when they reviewed it, recalled the officials asking him whether Flynn's conduct violated the Logan Act. 200 McCabe responded that he did not know, but the FBI was investigating the matter because it was a possibility. 201 Based on the evidence of Flynn's contacts with Kislyak, McGahn and Priebus concluded that Flynn could not have forgotten the details of the discussions of sanctions and had instead been lying about what he discussed with Kislyak. 202 Flynn had also told White House officials that the FBI had told him that the FBI was closing out its investigation of him, 203 but Eisenberg did not believe him. 204 After reviewing the materials and speaking with Flynn, McGahn and Priebus concluded that Flynn should be terminated and recommended that course of action to the President.205 That weekend, Flynn accompanied the President to Mar-a-Lago. 206 Flynn recalled that on February 12, 2017, on the return flight to D.C. on Air Force One, the President asked him whether he had lied to the Vice President. 207 Flynn responded that he may have forgotten details of his calls, but he did not think he lied.208 The President responded, "Okay. That's fine. Tgot it." 209

197

Greg Miller et al., National security adviser Flynn discussed sanctions with Russian ambassador, despite denials, officials say, Washington Post (Feb. 9, 2017). 198

SCRO 15 000202 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); McGahn 11/30/17 302, at 12. 199

SCR015_000202 (2/15/ 17 Draft Memorandum to file from the Office of the Counsel to the President); McCabe 8/17/17 302, at 11-13; Priebus 10/13/17 302, at 10; McGahn 11/30/17 302, at 12. 200

McCabe 8/17/17 302, at 13.

201

McCabe 8/ 17/17 302, at 13.

202

McGahn 11/30/17 302, at 12; Priebus 1/18/18 302, at 8; Priebus 10/13/17 302, at 10; SCRO l 5_ 000202 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President). 203

McGahn 11 /30/ 17 302, at 11 ; Eisenberg 11 /29/17 302, at 9; Priebus I 0/13/17 302, at 11.

204

Eisenberg 11 /29/17 302, at 9.

205

SCRO 15 _ 000202 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); Priebus 10/13/17 302, at 10; McGahn 11/30/17 302, at 12. 206

Flynn 11/17/17 302, at 8.

207

Flynn 1/ 19/18 302, at 9; Flynn 11/17/1 7 302, at 8.

208

Flynn 11/17/17 302, at 8; Flynn 1/19/18 302, at 9.

209

Flynn 1/19/18 302, at 9.

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On February 13, 2017, Priebus told Flynn he had to resign. 21 Flynn said he wanted to say goodbye to the President, so Priebus brought him to the Oval Office.211 Priebus recalled that the President hugged Flynn, shook his hand, and said, "We'll give you a good recommendation. You're a good guy·. We'll take care ofyou."212 Talking points on the resignation prepared by the White House Counsel's Office and distributed to the White House communications team stated that McGahn had advised the President that Flynn was unlikely to be prosecuted, and the President had determined that the issue with Flynn was one of trust. 213 Spicer told the press the next day that Flynn was forced to resign " not based on a legal issue, but based on a trust issue, [where] a level of trust between the President and General Flynn had eroded to the point where [the President] felt he had to make a change." 214 7. The President Discusses Flynn with FBI Director Corney On February 14, 2017, the day after Flynn 's resignation, the President had lunch at the White House with New Jersey Governor Chris Christie.215 According to Christie, at one point during the lunch the President said, "Now that we fired Flynn, the Russia thing is over."216 Christie laughed and responded, "No way." 2 17 He said, "this Russia thing is far from over" and "[w]e'll be here on Valentine's Day 2018 talking about this."218 The President said, "[w]hat do you mean? Flynn met with the Russians. That was the problem. I fired Flynn. It's over."219 Christie recalled responding that based on his experience both as a prosecutor and as someone who had been investigated, firing Flynn would not end the investigation. 22 Christie said there was no way to make an investigation shorter, but a lot of ways to make it longer. 221 The President asked Christie what he meant, and Christie told the President not to talk about the investigation even if he was

210

Priebus 1/18/18 302, at 9.

211

Priebus 1/18/18 302, at 9; Flynn 11/ 17/ 17 302, at 10.

212

Priebus 1/ 18/18 302, at 9; Flynn 11/17/ 17 302, at I 0.

213

SCR004_00600 (2/16/17 Email, Burnham to Donaldson).

214

Sean Spicer, White House Daily Briefing, C-SPAN (Feb. 14, 2017). After Flynn pleaded guilty to violating 18 U.S.C. § 100 I in December 2017, the President tweeted, "I had to fire General Flynn because he lied to the Vice President and the FBI." @realDonaldTrump 12/2/17 ( 12: 14 p.m. ET) Tweet. The next day, the President's personal counsel told the press that he had drafted the tweet. Maegan Vazquez et al., Trump's lawyer says he was behind President's tweet about firing Flynn, CNN (Dec. 3, 2017). 215

Christie 2/13/19 302, at 2-3 ; SCRO l 2b_ 000022 (President's Daily Diary, 2/14/17).

216

Christie 2/13/19 302, at 3.

217

Christie 2/13/19 302, at 3.

218

Christie 2/13/19 302, at 3. Christie said he thought when the President said "the Russia thing" he was referring to not just the investigations but also press coverage about Russia. Christie thought the more important thing was that there was an investigation . Christie 2/ 13/ 19 302, at 4 . 2 19

Christie 2/ 13/19 302, at 3.

°Christie 2/13/19 302, at 3.

22 1

Christie 2/13/19 302, at 3.

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frustrated at times. 222 Christie also to ld the President that he would never be able to get rid of Flynn, " like gum on the bottom of your shoe." 223 Towards the end of the lunch, the President brought up Corney and asked if Christie was still friendly with him. 224 Christie said he was.225 The President told Christie to call Corney and tell him that the President " really like[s] him. Tell him he's part of the team." 226 At the end of the lunch, the President repeated his request that Christie reach out to Comey.227 Christie had no intention of complying with the President' s request that he contact Corney. 228 He thought the President's request was "nonsensical" and Christie did not want to put Corney in the position of having to receive such a phone call. 229 Christie thought it would have been uncomfortable to pass on that message.230 At 4 p.rn. that afternoon, the President met with Corney, Sessions, and other officials for a homeland security briefing. 23 1 At the end of the briefing, the President dismissed the other attendees and stated that he wanted to speak to Corney alone. 232 Sessions and senior advisor to the President Jared Kushner remained in the Oval Office as other pa1ticipants left, but the President

222

Christie 2/13/ 19 302, at 3-4.

223

Christie 2/13/19 302, at 3. Christie also recalled that during the lunch, Flynn called Kushner, who was at the lunch, and complained about what Spicer had said about Flynn in his press briefing that day. Kushner told Flynn words to the effect of, "You know the President respects you. The President cares about you. I' ll get the President to send out a positive tweet about you later." Kushner looked at the President when he mentioned the tweet, and the President nodded his assent. Christie 2/13/ 19 302, at 3. Flynn recalled getting upset at Spicer's comments in the press conference and calling Kushner to say he did not appreciate the comments. Flynn 1/19/1 8 302, at 9. 224

Christie 2/ 13/ 19 302, at 4.

225

Christie 2/13/19 302, at 4.

226

Christie 2/ 13/19 302, at 4-5.

227

Christie 2/ 13/19 302, at 5.

228

Christie 2/ 13/19 302, at 5.

229

Christie 2/ 13/ 19 302, at 5.

Â°Christie 2/13/ 19 302, at 5.

23 1

SCRO l 2b_000022 (President's Daily Diary, 2/ 14/17); Corney 11 / 15/ 17 302, at 9.

232

Corney l 1/15/17 302, at 1O; 2/14/ 17 Corney Memorandum, at I; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record ofJames B. Corney, former Director of the FBI, at 4) ; Priebus 10/13/17 302, at 18 (confirming that everyone was shooed out "like Corney said" in his June testimony).

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excused them, repeating that he wanted to speak only with Comey. 233 At some point after others had left the Oval Office, Priebus opened the door, but the President sent him away.234 According to Corney's account of the meeting, once they were alone, the President began the conversation by saying, "I want to talk about Mike Flynn."235 The President stated that Flynn had not done anything wrong in speaking with the Russians, but had to be terminated because he had misled the Vice President. 236 The conversation turned to the topic of leaks of classified information, but the President returned to Flynn, saying "he is a good guy and has been through a lot. "237 The President stated, "I hope you can see your way clear to letting this go, to Jetting Flynn go. He is a good guy. I hope you can let this go."238 Corney agreed that Flynn "is a good guy," but did not commit to ending the investigation of Flynn. 239 Corney testified under oath that he took the President's statement "as a direction" because of the President's position and the circumstances of the one-on-one meeting .240

233

Corney 11/15/ 17 302, at IO; Corney 2/14/17 Memorandum, at I; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 4). Sessions recalled that the President asked to speak to Corney alone and that Sessions was one of the last to leave the room; he described Corney' s testimony about the events leading up to the private meeting with the President as "pretty accurate." Sessions 1/ 17/18 302, at 6. Kushner had no recollection of whether the President asked Corney to stay behind. Kushner 4/11 / 18 302, at 24. 234

Corney 2/ 14/ 17 Memorandum, at 2; Priebus I 0/ 13/17 302, at 18.

235

Corney 11 / 15/17 302, at 1O; Corney 2/14/ 17 Memorandum, at I; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 4). 236

Corney 2/14/ 17 Memorandum, at I; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 5). 237

Corney 11/15/17 302, at 10; Corney 2/14/ 17 Memorandum, at 2; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 5). 238

Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B . Corney, former Director of the FBI, at 5); Corney 2/14/17 Memorandum, at 2. Corney said he was highly confident that the words in quotations in his Memorandum documenting this meeting were the exact words used by the President. He said he knewÂˇ from the outset of the meeting that he was about to have a conversation of consequence, and he remembered the words used by the President and wrote them down soon after the meeting. Corney 11/15/17 302, at 10-11. 239

Corney 11 / 15/17 302, at 10; Corney 2/14/17 Memorandum, at 2.

240

Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (CQ Cong. Transcripts, at 31) (testimony of James B. Corney, former Director of the FBI). Corney further stated, "I mean, this is the president of the United States, with me alone, saying, 'I hope' this. I took it as, this is what he wants me to do." Id.; see also Corney 11 / 15/17 302, at 10 (Corney took the statement as an order to shut down the Flynn investigation).

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Shortly after meeting with the President, Corney began drafting a memorandum documenting their conversation. 241 Corney also met with his senior leadership team to discuss the President's request, and they agreed not to inform FBI officials working on the Flynn case of the President's statements so the officials would not be influenced by the request. 242 Corney also asked for a meeting with Sessions and requested that Sessions not leave Corney alone with the President again.243 8. The Media Raises Questions About the President's Delay in Terminating Flynn After Flynn was forced to resign, the press raised questions about why the President waited more than two weeks after the DOJ notification to remove Flynn and whether the President had known about Flynn' s contacts with Kislyak before the DOJ notification. 244 The press also continued to raise questions about connections between Russia and the President's campaign. 245 On February 15, 2017, the President told reporters, " General Flynn is a wonderful man . I think he's been treated very, very unfairly by the media." 246 On February 16, 2017, the President held 241

Corney 11/15/17 302, at 11; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the record of James B. Corney, former Director of the FBI, at 5). 242

Corney 11/15/17 302, at 11 ; Rybicki 6/9/ 17 302, at 4; Rybicki 6/22/17 302, at 1; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the record of James B. Corney, former Director of the FBI, at 5-6). 243 Corney 11/15/17 302, at 11; Rybicki 6/9/17 302, at 4-5; Rybicki 6/22/ 17 302, at 1-2; Sessions 1/17/ 18 302, at 6 (confirming that later in the week following Corney's one-on-one meeting with the President in the Oval Office, Corney told the Attorney General that he did not want to be alone with the President); Hunt 2/1 /18 302, at 6 (within days of the February 14 Oval Office meeting, Corney told Sessions he did not think it was appropriate for the FBI Director to meet alone with the President); Rybicki 11 /21/18 302, at 4 (Rybicki helped to schedule the meeting with Sessions because Corney wanted to talk about his concerns about meeting with the President alone); Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the record of James B. Corney, former Director of the FBI, at 6). 244

See, e.g., Sean Spicer, White House Daily Briefing, C-SPAN (Feb. 14, 2017) (questions from the press included, " if [the President] was notified 17 days ago that Flynn had misled the Vice President, other officials here, and that he was a potential threat to blackmail by the Russians, why would he be kept on for almost three weeks?" and "Did the President instruct [Flynn] to talk about sanctions with the [Russian ambassador]?"). Priebus recalled that the President initially equivocated on whether to fire Flynn because it would generate negative press to lose his National Security Advisor so early in his term. Priebus 1/18/ 18 302, at 8. 245

E.g., Sean Sullivan et al., Senators from both parties pledge to deepen probe of Russia and the 2016 election, Washington Post (Feb. 14, 2017); Aaron Blake, 5 times Donald Trump's team denied contact with Russia, Washington Post (Feb. 15, 2017); Oren Dorell, Donald Trump's ties to Russia go back 30 years, USA Today (Feb. 15, 2017); Pamela Brown et al., Trump aides were in constant touch with senior Russian officials during campaign, CNN (Feb. 15, 2017); Austin Wright, Camey briefs senators amidfuror over Trump-Russia ties, Politico (Feb. 17, 2017); Megan Twohey & Scott Shane, A Back-Channel Plan for Ukraine and Russia, Courtesy of Trump Associates, New York Times (Feb. 19, 2017). 246

Remarks by President Trump and Prime Minister Netanyahu oflsrael in Joint Press Conference, White House (Feb. 15, 2017).

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a press conference and said that he removed Flynn because Flynn "didn ' t tell the Vice President of the United States the facts, and then he didn't remember. And that just wasn' t acceptable to me." 247 The President said he did not direct Flynn to discuss sanctions with Kislyak, but "it certainly would have been okay with me ifhe did. I would have directed him to do it if I thought he wasn't doing it. I didn't direct him, but I would have directe;:d him because that's his job." 248 In listing the reasons for terminating Flynn, the President did not say that Flynn had lied to him. 249 The President also denied having any connection to Russia, stating, " I have nothing to do with Russia. I told you, I have no deals there. I have no anything."250 The President also said he " had nothing to do with" WikiLeaks's publication of information hacked from the Clinton campaign.25 l

9. The President Attempts to Have K.T. McFarland Create a Witness Statement Denying that he Directed Flynn's Discussions with Kislyak On February 22, 2017, Priebus and Bannon told McFarland that the President wanted her to resign as Deputy National Security Advisor, but they suggested to her that the Administration could make her the ambassador to Singapore. 252 The next day, the President asked Priebus to have McFarland draft an internal email that would confirm that the President did not direct Flynn to call the Russian Ambassador about sanctions.253 Priebus said he told the President he would only direct McFarland to write such a letter if she were comfortable with it.2 54 Priebus called McFarland into his office to convey the President's request that she memorialize in writing that the President did not direct Flynn to talk to Kislyak. 255 McFarland told Priebus she did not know whether the President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no

247

Remarks by President Trump in Press Conference, White House (Feb. 16, 2017).

248

Remarks by President Trump in Press Conference, White House (Feb. 16, 2017) . The President also said that Flynn's conduct "wasn't wrong - what he did in terms of the information he saw." The President said that Flynn was just "doing the job," and "if anything, he did something right." 249

Remarks by President Trump in Press Conference, White House (Feb. 16, 2017); Priebus 1/18/18 302, at 9. 250

Remarks by President Trump in Press Conference, White House (Feb. 16, 2017).

25 1

Remarks by President Trump in Press Conference, White House (Feb. 16, 2017).

252

KTMF_ 0000004 7 (McFarland 2/26/ 17 Memorandum for the Record); McFarland 12/22/17 302,

at 16-17. 253

See Priebus 1/18/ 18 302, at I I ; see also KTMF _ 00000048 (McFarland 2/26/ 17 Memorandum for the Record); McFarland 12/22/ 17 302, at 17. 254

Priebus I/ 18/18 302, at 11.

255

KTMF_00000048 (McFarland 2/26/17 Memorandum for the Record) ; McFarland 12/22/ 17 302,

at 17.

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to the request. 256 Priebus understood that McFarland was not comfortable with the President's request, and he recommended that she talk to attorneys in the White House Counsel ' s Office.257 McFarland then reached out to Eisenberg. 258 McFarland told him that she had been fired from her job as Deputy National Security Advisor and offered the ambassadorship in Singapore but that the President and Priebus wanted a letter from her denying that the President directed Flynn to discuss sanctions with Kislyak. 259 Eisenberg advised McFarland not to write the requested letter. 260 As documented by McFarland in a contemporaneous "Memorandum for the Record" that she wrote because she was concerned by the President's request: "Eisenberg ... thought the requested email and letter would be a bad idea- from my side because the email would be awkward . Why would Tbe emailing Priebus to make a statement for the record? But it would also be a bad idea for the President because it looked as if my ambassadorial appointment was in some way a quid pro quo." 26 1 Later that evening, Priebus stopped by McFarland's office and told her not to write the email and to forget he even mentioned it. 262 Around the same time, the President asked Priebus to reach out to Flynn and let him know that the President still cared about him. 263 Priebus called Flynn and said that he was checking in and that Flynn was an American hero. 264 Priebus thought the President did not want Flynn saying bad things about him. 265 On March 31 , 2017, following news that Flynn had offered to testify before the FBI and congressional investigators in exchange for immunity, the President tweeted, "Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of

256

KTMF_00000047 (McFarland 2/26/ 17 Memorandum for the Record) ("I said I did not know whether he did or didn't, but was in Maralago the week between Christmas and New Year's (while Flynn was on vacation in Carribean) and I was not aware of any Flynn-Trump, or Trump-Russian phone calls"); McFarland 12/22/ 17 302, at 17. 257

Priebus 1/18/18 302, at 11.

258

McFarland 12/22/ 17 302, at 17.

259

McFarland 12/22/ 17 302, at 17.

Â°KTMF

00000048 (McFarland 2/26/ 17 Memorandum for the Record); McFarland 12/22/17 302,

at 17. 261

KTMF_00000048 (McFarland 2/26/ 17 Memorandum for the Record); see McFarland 12/22/ 17

302, at 17. 262

McFarland 12/22/ 17 302, at 17; KTMF_ 00000048 (McFarland 2/26/17 Memorandum for the

Record). 263

Priebus 1/18/18 302, at 9.

264

Priebus 1/18/18 302, at 9; Flynn 1/19/18 302, at 9.

265

Priebus 1/ 18/ 18 302, at 9-10.

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historic proportion! " 266 Tn late March or early April, the President asked McFarland to pass a message to Flynn telling him the President felt bad for him and that he should stay strong. 267

Analysis In analyzing the President's conduct related to the Flynn investigation, the following evidence is relevant to the elements of obstruction of justice: a. Obstructive act. According to Corney' s account of his Febmary 14, 2017 meeting in the Oval Office, the President told him, "I hope you can see your way clear to letting this go, to letting Flynn go ... . I hope you can let this go." In analyzing whether these statements constitute an obstructive act, a threshold question is whether Corney's account of the interaction is accurate, and, if so, whether the President's statements had the tendency to impede the administration of justice by shutting down an inquiry that could result in a grand jury investigation and a criminal charge. After Corney's account of the President' s request to "let[] Fly nn go" became public, the President publicly disputed several aspects of the story. The President told the New York Times that he did not " shoo other people out of the room" when he talked to Corney and that he did not remember having a one-on-one conversation with Comey. 268 The President also publicly denied that he had asked Corney to "let[] Flynn go" or otherwise communicated that Corney should drop the investigation ofFlynn. 269 In private, the President denied aspects of Corney's account to White House advisors, but acknowledged to Priebus that he brought Flynn up in the meeting with Corney and stated that Flynn was a good guy. 270 Despite those denials, substantial evidence corroborates Corney' s account.

266

@realDonaldTrump 3/31 / 17 (7:04 a.m. ET) Tweet; see Shane Harris at al., Mike Flynn Offers to Testify in Exchange/or Immunity, Wall Street Journal (Mar. 30, 2017). 26 7

McFarland 12/22/ 17 302, at 18.

268

Excerpts From The Times 's Interview With Trump, New York Times (July 19, 2017). Hicks recalled that the President told her he had never asked Corney to stay behind in his office. Hicks l 2/ 8/ l 7 302, at 12. 269

In a statement on May 16, 2017, the White House said: " While the President has repeatedly expressed his view that General Flynn is a decent man who served and protected our country, the President has never asked Mr. Corney or anyone else to end any investigation, including any investigation involving General Flynn. . . . This is not a truthful or accurate portrayal of the conversation between the President and Mr. Corney." See Michael S. Schmidt, Camey Memorandum Says Trump Asked Him to End Flynn Investigation, New York Times (May 16, 2017) (quoting White House statement); @realDonaldTrump 12/3/ 17 (6: l 5 a.m. ET) Tweet ("I never asked Corney to stop investigating Flynn. Just more Fake News covering another Corney lie!"). 270

Priebus recalled that the President acknowledged telling Corney that Flynn was a good guy and he hoped "everything worked out for him." Priebus I0/ 13/ 17 302, at 19. McGahn recalled that the President denied saying to Corney that he hoped Corney would let Flynn go, but added that he was "allowed to hope." The President told McGahn he did not think he had crossed any lines. McGahn 12/14/17 302, at

8. 44

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First, Corney wrote a detailed memorandum of his encounter with the President on the same day it occurred. Corney also told senior FBI officials about the meeting with the President that day, and their recollections of what Corney told them at the time are consistent with Corney's account. 271 Second, Corney provided testimony about the President's request that he "letD Flynn go" under oath in congressional proceedings and in interviews with federal investigators subject to penalties for lying under 18 U.S.C. ยง 100 I. Corney's recollections of the encounter have remained consistent over time. Third, the objective, corroborated circumstances of how the one-on-one meeting came to occur support Corney's description of the event. Corney recalled that the President cleared the room to speak with Corney alone after a homeland security briefing in the Oval Office, that Kushner and Sessions lingered and had to be shooed out by the President, and that Priebus briefly opened the door during the meeting, prompting the President to wave him away . While the President has publicly denied those details, other Administration officials who were present have confirmed Corney's account of how he ended up in a one-on-one meeting with the President. 272 And the President acknowledged to Priebus and McGahn that he in fact spoke to Corney about Flynn in their one-on-one meeting. Fourth, the President's decision to clear the room and, in particular, to exclude the Attorney General from the meeting signals that the President wanted to be alone with Corney, which is consistent with the delivery of a message of the type that Corney recalls, rather than a more innocuous conversation that could have occurred in the presence of the Attorney General. Finally, Corney's reaction to the President's statements is consistent with the President having asked him to " let[] Flynn go." Corney met with the FBI leadership team, which agreed to keep the President's statements closely held and not to infotm the team working on the Flynn investigation so that they would not be influenced by the President' s request. Corney also promptly met with the Attorney General to ask him not to be left alone with the President again, an account verified by Sessions, FBI Chief of Staff James Rybicki, and Jody Hunt, who was then the Attorney General's chief of staff. A second question is whether the President's statements, which were not phrased as a direct order to Corney, could impede or interfere with the FBI 's investigation of Flynn. While the President said he "hope[d]" Corney could "let[] Flynn go," rather than affirmatively directing him to do so, the circumstances of the conversation show that the President was asking Corney to close the FBI's investigation into Flynn. First, the President arranged the meeting with Corney so that they would be alone and purposely excluded the Attorney General, which suggests that the President meant to make a request to Corney that he did not want anyone else to hear. Second, because the President is the head of the Executive Branch, when he says that he "hopes" a subordinate will do something, it is reasonable to expect that the subordinate will do what the President wants. Indeed, the President repeated a version of " let this go" three times, and Corney 271

Rybicki 11 /2 1/ 18 302, at4; McCabe 8/17/17 302, at 13-14.

272

See Priebus 10/ 13/ 17 302, at 18; Sessions 1/17 /18 302, at 6.

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testified that he understood the President's statements as a directive, which is corroborated by the way Corney reacted at the time. Nexus to a proceeding. To establish a nexus to a proceeding, it would be necessary b. to show that the President could reasonably foresee and actually contemplated that the investigation of Flynn was likely to lead to a grand jury investigation or prosecution. At the time of the President's one-on-one meeting with Corney, no grand jury subpoenas had been issued as part of the FBT's investi ation into Fl nn. But Fl nn's lies to the FBI violated federal criminal law, , and resulted in Flynn's prosecution for violating 18 U .S.C. ยง I 00 I. By the time the President spoke to Corney about Flynn, DOJ officials had informed McGahn, who informed the President, that Flynn's statements to senior White House officials about his contacts with Kislyak were not true and that Flynn had told the same version of events to the FBI. McGahn also informed the President that Flynn's conduct could violate 18 U.S.C . ยง I 00 I. After the Vice President and senior White House officials reviewed the underlying information about Flynn's calls on February 10, 2017, they believed that Flynn could not have forgotten his conversations with Kislyak and concluded that he had been lying. In addition, the President's instruction to the FBI Director to "let[] Flynn go" suggests his awareness that Flynn could face criminal exposure for his conduct and was at risk of prosecution. c. Intent. As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn's communications with Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn's calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President's knowledge. In advance of Flynn's initial call with Kislyak, the President attended a meeting where the sanctions were discussed and an advisor may have mentioned that Flynn was scheduled to talk to Kislyak. Flynn told McFarland about the substance of his calls with Kislyak and said they may have made a difference in Russia's response, and Flynn recalled talking to Bannon in early January 2017 about how they had successfully "stopped the train on Russia's response" to the sanctions. It would have been reasonable for Flynn to have wanted the President to know of his communications with Kislyak because Kislyak told Flynn his request had been received at the highest levels in Russia and that Russia had chosen not to retaliate in response to the request, and the President was pleased by the Russian response, calling it a "[g]reat move." And the President never said publicly or internally that Flynn had lied to him about the calls with Kislyak. But McFarland did not recall providing the President-Elect with Flynn's read-out of his calls with Kislyak, and Flynn does not have a specific recollection of telling the President-Elect directly about the calls. Bannon also said he did not recall hearing about the calls from Flynn. And in February 2017, the President asked Flynn what was discussed on the calls and whether he had lied to the Vice President, suggesting that he did not already know. Our investigation accordingly did not produce evidence that established that the President knew about Flynn's discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017. The evidence also does not establish that Flynn otherwise

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possessed information damaging to the President that would give the President a personal incentive to end the FBl ' s inquiry into Flynn's conduct. Evidence does establish that the President connected the Flynn investigation to the FBl's broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would end "the whole Russia thing." Flynn's firing occurred at a time when the media and Congress were raising questions about Russia's interference in the election and whether members of the President's campaign had colluded with Russia. Multiple witnesses recalled that the President viewed the Russia investigations as a challenge to the legitimacy of his election. The President paid careful attention to negative coverage of Flynn and reacted with annoyance and anger when the story broke disclosing that Flynn had discussed sanctions with Kislyak. Just hours before meeting one-on-one with Corney, the President told Christie that firing Flynn would put an end to the Russia inquiries. And after Christie pushed back, telling the President that firing Flynn would not end the Russia investigation , the President asked Christie to reach out to Corney and convey that the President liked him and he was part of "the team." That afternoon, the President cleared the room and asked Corney to "let[] Flynn go ." We also sought evidence relevant to assessing whether the President's direction to Corney was motivated by sympathy towards Flynn. In public statements the President repeatedly described Flynn as a good person who had been harmed by the Russia investigation, and the President directed advisors to reach out to Flynn to tell him the President "care[ d]" about him and felt bad for him. At the same time, multiple senior advisors, including Bannon, Priebus, and Hicks, said that the President had become unhappy with Flynn well before Flynn was forced to resign and that the President was frequently irritated with Flynn . Priebus said he believed the President' s initial reluctance to fire Flynn stemmed not from personal regard, but from concern about the negative press that would be generated by firing the National Security Advisor so early in the Administration. And Priebus indicated that the President's post-firing expressions of support for Flynn were motivated by the President's desire to keep Flynn from saying negative things about him. The way in which the President communicated the request to Corney also is relevant to understanding the President's intent. When the President first learned about the FBI investigation into Flynn, he told McGahn, Bannon, and Priebus not to discuss the matter with anyone else in the White House. The next day, the President invited Corney for a one-on-one dinner against the advice of an aide who recommended that other White House officials also attend. At the dinner, the President asked Corney for "l_o yalty" and, at a different point in the conversation, mentioned that Flynn had judgment issues. When the President met with Corney the day after Flynn's termination- shortly after being told by Christie that firing Flynn would not end the Russia investigation-the President cleared the room, even excluding the Attorney General, so that he could again speak to Corney alone. The President's decision to meet one-on-one with Corney contravened the advice of the White House Counsel that the President should not communicate directly with the Department of Justice to avoid any appearance of interfering in law enforcement activities. And the President later denied that he cleared the room and asked Corney to " let[] Flynn go"-a denial that would have been unnecessary if he believed his request was a proper exercise of prosecutorial discretion.

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Finally, the President' s effort to have McFarland write an internal email denying that the President had directed Flynn to discuss sanctions with Kislyak highlights the President's concern about being associated with Flynn' s conduct. The evidence does not establish that the President was trying to have McFarland lie. The President' s request, however, was sufficiently irregular that McFarland- who did not know the full extent of Flynn' s communications with the President and thus could not make the representation the President wanted-felt the need to draft an internal memorandum documenting the President's request, and Eisenberg was concerned that the request would look like a quid pro quo in exchange for an ambassadors hip.

The President's Reaction to Public Confirmation of the FBl's Russia Investigation Overview

In early March 2017, the President learned that Sessions was c onsidering rec using from the Russia investigation and tried to prevent the recusal. After Sessions announced his recusal on March 2, the President expressed . anger at Sessions for the decision and then privately asked Sessions to "unrecuse." On March 20, 2017, Corney publicly disclosed the existence of the FBI ' s Russia investigation. In the days that followed, the President contacted Corney and other inte lligence agency leaders and asked them to push back publicly on the suggestion that the President had any connection to the Russian election-interference effort in order to " lift the cloud" of the ongoing investigation.

Evidence I . Attorney General Sessions Recuses From the Russia Investigation

In late February 2017, the Department of Justice began an internal analysis of whether Sessions should recuse from the Russia investigation based on his role in the 2016 Trump Campaign. 273 On March I, 2017, the press reported that, in his January confirmation hearing to become Attorney General, Senator Sessions had not disclosed two meetings he had with Russian Ambassador Kislyak before the presidential election, leading to congressional calls for Sessions to recuse or for a special counsel to investigate Russia's interference in the presidential election. 274 Also on March I , the President called Corney and said he wanted to check in and see how Corney was doing.275 According to an email Corney sent to his chief of staff after the call, the President "talked about Sessions a bit," said that he had heard Corney was "doing great," and said that he hoped Corney would come by to say hello when he was at the White House. 276 Corney

273

Sessions 1/ 17/ 18 302, at I ; Hunt 2/ 1/18 302, at 3.

274

E.g. , Adam Entous et al., Sessions met with Russian envoy twice last year, encounters he later did not disclose, Washington Post (Mar. I, 2017). 275

3/1/ 17 Email, Corney to Rybicki; SCR012b_000030 (President's Daily Diary, 3/l / 17, reflecting call with Corney at 11 :55 am.) 276

3/1/ 17 Email, Corney to Rybicki; see Hearing on Russian Election Interference Bef ore the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (CQ Cong. Transcripts, at 86) (testimony

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interpreted the call as an effort by the President to "pull [him] in," but he did not perceive the call as an attempt by the President to find out what Corney was doing with the Flynn investigation.277 The next morning, the President called McGahn and urged him to contact Sessions to tell him not to recuse himself from the Russia investigation. 278 McGahn understood the President to be concerned that a recusal would make Sessions look guilty for omitting details in his confirmation hearing; leave the President unprotected from an investigation that could hobble the presidency and derail his policy objectives; and detract from favorable press coverage of a 279 McGahn Presidential Address to Congress the President had delivered earlier in the week. reached out to Sessions and reported that the President was not happy about the possibility of recusal. 280 Sessions replied that he intended to follow the rules on recusal. 281 McGahn reported back to the President about the call with Sessions, and the President reiterated that he did not want Sessions to recuse. 282 Throughout the day, McGahn continued trying on behalf of the President to avert Sessions's recusal by speaking to Sessions's personal counsel, Sessions's chief of staff, and 283 Senate Majority Leader Mitch McConnell, and by contacting Sessions himself two more times. Sessions recalled that other White House advisors also called him that day to argue against his recusal. 284 That afternoon, Sessions announced his decision to recuse "from any existing or future investigations of any matters related in any way to the campaigns for President of the United States." 285 Sessions believed the decision to recuse was not a close call, given the applicable

of James B. Corney, former Director of the FBI) ("[H]e called me one day . ... [H]e just called to check in and tell me I was doing an awesome job, and wanted to see how I was doing."). 277

Corney 11/15/17 302, at 17-18.

278

McGahn 11 /30/17 302, at 16.

279

McGahn 11/30/17 302, at 16-17; see SC_AD_OOl23 (Donaldson 3/2/17 Notes) ("Just in the middle of another Russia Fiasco."). 280

Sessions l/17/18302, at3.

281

McGahn 11/30/17 302, at 17.

282

McGahn I I/30/17 302, at l 7.

283

McGahn 11/30/17 302, at 18-19; Sessions 1/17/18 302, at 3; Hunt 2/1/18 302, at 4; Donaldson 11 /6/ 17 302, at 8-1 O; see Hunt-000017; SC_AD_ 00121 (Donaldson 3/2/17 Notes). 284

Sessions 1/17/ 18 302, at 3.

285

Attorney General Sessions Statement on Recusal, Department of Justice Press Release (Mar. 2, 2017) ("During the course of the last several weeks, I have met with the relevant senior career Department officials to discuss whether I should recuse myself from any matters arising from the campaigns for President of the United States. Having concluded those meetings today, I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.") . At the time of Sessions's recusal, Dana Boente, then the Acting Deputy Attorney General and U.S. Attorney for the Eastern District of Virginia, became the Acting Attorney General for . campaign-related matters pursuant to an executive order specifying the order of succession at the Department of Justice. Id. ("Consistent with the succession order for the Department of Justice, . . . Dana Boente shall act as and perform the functions of the Attorney General with respect to any matters from

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language in the Code of Federal Regulations (CFR), which Sessions considered to be clear and decisive. 286 Sessions thought that any argument that the CFR did not apply to him was "very thin." 287 Sessions got the impression, based on calls he received from White House officials, that the President was very upset with him and did not think he had done his duty as Attorney General. 288 Shortly after Sessions announced his recusal, the White House Counsel's Office directed that Sessions should not be contacted about the matter. 289 Internal White House Counsel's Office notes from March 2, 2017, state "No contact w/Sessions" and "No comms / Serious concerns about obstruction."290 291

On March 3, the day after Sessions's recusal, McGahn was called into the Oval Office . 2 92 Other advisors were there, including Priebus and Bannon . The President opened the conversation by saying, "I don't have a lawyer."293 The President expressed anger at McGahn 294 about the recusal and brought up Roy Cohn, stating that he wished Cohn was his attorney. McGahn interpreted this comment as directed at him, suggesting that Cohn would fight for the

which I have recused myself to the extent they exist."); see Exec. Order No. 13775, 82 Fed. Reg. 10697 (Feb. 14, 2017). 286

Sessions 1/17 /18 302, at 1-2. 28 C.F.R. § 45.2 provides that "no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with . .. [a]ny person or organization substantially involved in the conduct that is the subject of the investigation or prosecution," and defines "political relationship" as "a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof." 287

Sessions 1/17/18 302, at 2.

288

Sessions 1/17/18 302, at 3.

289

Donaldson I 1/6/ 17 302, at I I; SC_AD_00123 (Donaldson 3/2/ 17 Notes). It is not clear whether the President was aware of the White House Counsel 's Office direction not to contact Sessions about his recusal. 290

SC AD 00123 (Donaldson 3/2/17 Notes). McGahn said he believed the note "No comms / Serious concerns about obstruction" may have referred to concerns McGahn had about the press team saying "crazy things" and trying to spin Sessions's recusal in a way that would raise concerns about obstruction. McGahn 11/30/17 302, at 19. Donaldson recalled that "No comms" referred to the order that no one should contact Sessions. Donaldson I 1/6/17 302, at I I. 291

McGahn 12/ 12/17 302, at 2.

292

McGahn 12/12/ 17 302, at 2.

293

McGahn 12/12/17 302, at 2.

294

McGahn 12/12/ 17 302, at 2. Cohn had previously served as a lawyer for the President during his career as a private businessman. Priebus recalled that when the President talked about Cohn, he said Cohn would win cases for him that had no chance, and that Cohn had done incredible things for him. Priebus 4/3/18 302, at 5. Bannon recalled the President describing Cohn as a winner and a fixer, someone who got things done. Bannon 2/14/18 302, at 6.

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President whereas McGahn would not. 295 The President wanted McGahn to talk to Sessions about the recusal, but McGahn told the President that DOJ ethics officials had weighed in on Sessions 's decision to recuse. 296 The President then brought up former Attorneys General Robert Kennedy and Eric Holder and said that they had protected their presidents. 297 The President also pushed back on the DOJ contacts policy, and said words to the effect of, "You're telling me that Bobby and Jack didn ' t talk about investigations? Or Obama didn' t tell Eric Holder who to investigate?" 298 Bannon recalled that the President was as mad as Bannon had ever seen him and that he screamed at McGahn about how weak Sessions was. 299 Bannon recalled telling the President that Sessions's recusal was not a surprise and that before the inauguration they had discussed that Sessions would have to recuse from campaign- related investigations because of his work on the Trump Campaign. 300 That weekend, Sessions and McGahn flew to Mar-a-Lago to meet with the President. 301 Sessions recalled that the President pulled him aside to speak to him alone and suggested that Sessions should "unrecuse" from the Russia investigation. 302 The President contrasted Sessions with Attorneys General Holder and Kennedy, who had developed a strategy to help their presidents where Sessions had not. 303 Sessions said he had the impression that the President feared that the investigation could spin out of control and disrupt his ability to govern, which Sessions could have helped avert if he were still overseeing it. 304 On March 5, 2017, the White House Counsel's Office was informed that the FBI was asking for transition- period records relating to Flynn-indicating that the FBI was still actively investigating him.305 On March 6, the President told advisors he wanted to call the Acting Attorney

295

McGahn 12/12/ 17 302, at 2.

296

McGahn 12/ 12/ 17 302, at 2.

297

McGahn 12/ 12/ 17 302, at 3. Bannon said the President saw Robert Kennedy and Eric Holder as Attorneys General who protected the presidents they served. The President thought Holder always stood up for President Obama and even took a contempt charge for him, and Robert Kennedy always had his brother's back. Bannon 2/ 14/ 18 302, at 5. Priebus recalled that the President said he had been told his entire life he needed to have a great lawyer, a "bulldog," and added that Holder had been willing to take a contempt-of-Congress charge for President Obama. Priebus 4/3/ 18 302, at 5. 298

McGahn 12/ l2/ 17302,at3.

299

Bannon 2/14/18 302, at 5.

300

Bannon 2/14/18 302, at 5.

301

Sessions 1/17/ 18 302, at 3; Hunt 2/ 1/ 18 302, at 5; McGahn 12/ 12/ 17 302, at 3.

302

Sessions 1/17/18 302, at 3-4.

303

Sessions 1/17/18 302, at3-4

304

Sessions 1/17/18 302, at 3-4. Hicks recalled that after Sessions recused, the President was angry and scolded Sessions in her presence, but she could not remember exactly when that conversation occurred. Hicks 12/8/ 17 302, at 13. 305

SC_AD_000137 (Donaldson 3/5/ 17 Notes); see Donaldson 11 /6/17 302, at 13. 51

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General to find out whether the White House or the President was being investigated, although it is not clear whether the President knew at that time of the FBI's recent request concerning Flynn .306 2. FBI Director Corney Publicly Confirms the Existence of the Russia Investigation in Testimony Before HPSCT On March 9, 2017, Corney briefed the "Gang of Eight" congressional leaders about the FBI's investigation of Russian interference, including an identification of the principal U.S. subjects of the investigation. 307 Although it is unclear whether the President knew of that briefing at the time, notes taken by Annie Donaldson, then McGahn' s chief of staff, on March 12, 2017, state, "POTUS in panic/chaos ... Need binders to put in front of POTUS. (1) All things related to Russia."308 The week after Corney's briefing, the White House Counsel's Office was in contact with SSCI Chairman Senator Richard Burr about the Russia investigations and appears to have received information about the status of the FBI investigation.309 On March 20, 2017, Corney was scheduled to testify before HPSCI. 310 In advance of Corney's testimony, congressional officials made clear that they wanted Corney to provide information about the ongoing FBI investigation.311 Dana Boente, who at that time was the Acting Attorney General for the Russia investigation, authorized Corney to confirm the existence of the Russia investigation and agreed that Corney should decline to comment on whether any particular individuals, including the President, were being investigated. 31 2

306

Donaldson 11 /6/17 302, at 14; see SC AD 000168 (Donaldson 3/6/17 Notes) ("POTUS wants to call Dana [then the Acting Attorney General for campaign-related investigations]/ Is investigation / No / We know something on Flynn I GSA got contacted by FBI / There' s something hot"). 307

Corney l 1/15/17 302, at 13-14; SNS-Classified-0000140-44 (3/8/ 17 Email, Gauhar to Page et

al.). 308

SC_AD_00188 (Donaldson 3/ 12/18 Notes). Donaldson said she was not part of the conversation that led to these notes, and must have been told about it from others. Donaldson 11/6/ 17 302, at 13. 309

Donaldson 11 /6/17 302, at 14-15. On March 16, 2017, the White House Counsel's Office was briefed by Senator Burr on the existence of"4-5 targets." Donaldson 11 /6/17 302, at 15. The "targets" were identified in notes taken by Donaldson as "Flynn (FBI was ~ o o k i n g for phone records"; "Comey---tManafort (Ukr + Russia, not c a m p a i g n ) " ; ~ "Carter Page ($ game)"; and "Greek Guy" (potentially referring to George Papadopoulos, later charged with violating 18 U.S.C. ยง 1001 for lying to the FBI). SC AD 00198 (Donaldson 3/16/17 Notes). Donaldson and McGahn both said they believed these were targets of SSCI. Donaldson 11/6/17 302, at 15; McGahn 12/ 12/17 302, at 4. But SSCI does not formally investigate individuals as "targets"; the notes on their face reference the FBI, the Department of Justice, and Corney; and the notes track the background materials prepared by the FBI for Corney 's briefing to the Gang of 8 on March 9. See SNS-Classified-0000140-44 (3/8/17 Email, Gauhar to Page et al.); see also Donaldson 11 /6/17 302, at 15 (Donaldson could not rule out that Burr had told McGahn those individuals were the FBI's targets). 310

Hearing on Russian Election Tampering Before the House Permanent Select Intelligence Committee, 115th Cong. (Mar. 20, 2017). 311

Corney 11/15/17 302, at 16; McCabe 8/17/17, at 15; McGahn 12/14/17 302, at I.

31 2

Boente 1/31 / 18 302, at 5; Corney 11/15/17 302, at 16-17.

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In his opening remarks at the HPSCI hearing, which were drafted in consultation with the Department of Justice, Corney stated that he had "been authorized by the Department of Justice to confirm that the FBI, as part of [its] counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed."313 Corney added that he would not comment further on what the FBI was "doing and whose conduct [it] [was] examining" because the investigation was ongoing and classified- but he observed that he had "taken the extraordinary step in consultation with the Department of Justice of bri efing this Congress's leaders ... in a classified setting in detail about the investigation."314 Corney was specifically asked whether President Trump was "under investigation during the campaign" or "under investigation now."315 Corney declined to answer, stating, "Please don 't over interpret what I've said as-as the chair and ranking know, we have briefed him in great detail on the subjects of the investigation and what we're doing, but T'm not gonna answer about anybody in this forum." 3 16 Corney was also asked whether the FBI was 317 investigating the information contained in the Steele reporting, and he declined to answer. According to McGahn and Donaldson, the President had expressed frustration with Corney before his March 20 testimony, and the testimony made matters worse.3 18 The President had previously criticized Corney for too frequently making headlines and for not attending intelligence briefings at the White House, and the President suspected Corney of leaking certain information to the media. 31 9 McGahn said the President thought Corney was acting like "his own branch of government. ,mo

3 13

Hearing on Russian Election Tampering Before the House Permanent Select Intelligence Committee, 115th Cong. (Mar. 20, 2017) (CQ Cong. Transcripts, at 11) (testimony by FBI Director James B. Corney); Corney 11/ 15/ 17 302, at 17; Boente 1/31 /18 302, at 5 (confirming that the Department of Justice authorized Corney's remarks). 314

Hearing on Russian Election Tampering Before the House Permanent Select Intelligence Committee, I 15th Cong. (Mar. 20, 2017) (CQ Cong. Transcripts, at 130) (question by Rep. Swalwell). 316

Hearing on Russian Election Tampering Before the House Permanent Select Intelligence Committee, I 15th Cong. (Mar. 20, 2017) (CQ Cong. Transcripts, at 130) (testimony by FBI Director James B. Corney). 317

Hearing on Russian Election Tampering Before the House Permanent Select Intelligence Committee, I 15th Cong. (Mar. 20, 2017) (CQ Cong. Transcripts, at 143) (testimony by FBI Director James B. Corney). 318

Donaldson 11/6/17 302, at 21; McGahn 12/12/17 302, at 7.

319

Donaldson 11/6/ 17 302, at 21; McGahn 12/ 12/ 17 302, at 6-9.

320

McGahn 12/12/ 17 302, at 7.

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Press reports following Corney's March 20 testimony suggested that the FBI was investigating the President, contrary to what Corney had told the President at the end of the January 6, 2017 intelligence assessment briefing. 321 McGahn, Donaldson, and senior advisor Stephen Miller recalled that the President was upset with Corney's testimony and the press coverage that followed because of the suggestion that the President was under investigation.322 Notes from the White House Counsel's Office dated March 21, 2017, indicate that the President was " beside himself' over Corney's testimony. 323 The President called McGahn repeatedly that day to ask him to intervene with the Department of Justice, and, according to the notes, the President was "getting hotter and hotter, get rid?"324 Officials in the White House Counsel's Office became so concerned that the President would fire Corney that they began drafting a memorandum that examined whether the President needed cause to terminate the FBI director.3 25 At the President's urging, McGahn contacted Boente several times on March 21, 2017, to seek Boente's assistance in having Corney or the Department of Justice correct the misperception that the President was under investigation. 326 Boente did not specifically recall the conversations, although he did remember one conversation with McGahn around this time where McGahn asked if there was a way to speed up or end the Russia investigation as quickly as possible. 327 Boente 328 said McGahn told him the President was under a cloud and it made it hard for him to govern. Boente recalled telling McGahn that there was no good way to shorten the investigation and attempting to do so could erode confidence in the investigation's conclusions. 329 Boente said McGahn agreed and dropped the issue. 330 The President also sought to speak with Boente directly, but McGahn told the President that Boente did not want to talk to the President about the request

321

E.g. , Matt Apuzzo et al., F.B.J. Is Investigating Trump's Russia Ties, Corney Confirms , New York Times (Mar. 20, 2017); Andy Greenberg. The FBI Has Been Investigating Trump's Russia Ties Since July, Wired (Mar. 20, 2017); Julie Borger & Spencer Ackerman, Trump-Russia collusion is being investigated by FBI, Corney confirms, Guardian (Mar. 20, 2017); see Corney I/6/17 Memorandum, at 2. 322

Donaldson 11 /6/17 302, at 16-17; S. Miller 10/31/17 302, at 4; McGahn 12/12/17 302, at 5-7.

323

SC_AD_00213 (Donaldson 3/21 / 17 Notes). The notes from that day also indicate that the President referred to the "Corney bombshell" which "made [him] look like a fool." SC_AD_00206 (Donaldson 3/21/17 Notes). 324

SC AD 00210 (Donaldson 3/21 / 17 Notes).

325

SCROl6_000002-05 (White House Counsel's Office Memorandum). White House Counsel's Office attorney Uttam Dhillon did not recall a triggering event causing the White House Counsel 's Office to begin this research. Dhillon 11 /21/17 302, at 5. Metadata from the document, which was provided by the White House, establishes that it was created on March 21, 2017. 326

Donaldson 11/6/17 302, at 16-21; McGahn 12/12/17 302, at 5-7.

327

Boente 1/31 / 18 302, at 5.

328

Boente 1/31/18 302, at 5.

329

Boente I/31 /18 302, at 5.

330

Boente 1/31/ 18 302, at 5.

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to intervene with Comey.331 McGahn recalled Boente telling him in calls that day that he did not think it was sustainable for Corney to stay on as FBI director for the next four years, which McGahn said he conveyed to the President. 332 Boente did not recall discussing with McGahn or anyone else the idea that Corney should not continue as FBI director.333 3. The President Asks Intelligence Community Leaders to Make Public Statements that he had No Connection to Russia In the weeks following Corney's March 20, 20 l 7 testimony, the President repeatedly asked intelligence community officials to push back publicly on any suggestion that the President had a connection to the Russian election-interference effort. On March 22, 2017, the President asked DirectorofNational Intelligence Daniel Coats and CIA Director Michael Pompeo to stay behind in the Oval Office after a Presidential Daily Briefing. 334 According to Coats, the President asked them whether they could say publicly that no link existed between him and Russia. 335 Coats responded that the Office of the Director ofNational Intelligence (ODNI) has nothing to do with investigations and it was not his role to make a public statement on the Russia investigation. 336 Pompeo had no recollection of being asked to stay behind after the March 22 briefing, but he recalled that the President regularly urged officials to get the word out that he had not done anything wrong related to Russia.337 Coats told this Office that the President never asked him to speak to Corney about the FBI investigation .338 Some ODNI staffers, however, had a different recollection of how Coats described the meeting immediately after it occurred. According to senior ODNI official Michael Dempsey, Coats said after the meeting that the President had brought up the Russia investigation and asked him to contact Corney to see ifthere was a way to get past the investigation, get it over with, end it, or words to that effect. 339 Dempsey said that Coats described the President' s comments as falling "somewhere between musing about hating the investigation" and wanting Coats to "do something to stop it." 340 Dempsey said Coats made it clear that he would not get involved with an ongoing FBI investigation. 341 Edward Gistaro, another ODNI official, recalled 331

SC_AD_00210 (Donaldson 3/21 / 17 Notes); McGahn 12/ 12/ 17 302, at 7; Donaldson 11/6/ 17

302, at 19. 332

McGahn 12/ 12/ 17 302, at 7; Burnham 11/03/ 17 302, at 11.

333

Boente 1/31 / 18 302, at 3.

334

Coats 6/ 14/17 302, at 3; Culver 6/14/ 17 302, at 2.

335

Coats 6/ 14/ 17 302, at 3.

336

Coats 6/14/ 17 302, at 3.

337

Pompeo 6/28/ 17 302, at 1-3.

338

Coats 6/14/ 17 302, at 3.

339

Dempsey 6/14/17 302, at 2.

340

Dempsey 6/ 14/ 17 302, at 2-3.

34 1

Dempsey 6/14/17 302, at 3.

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that right after Coats's meeting with the President, on the walk from the Oval Office back to the Eisenhower Executive Office Building, Coats said that the President had kept him behind to ask him what he could do to "help with the investigation."342 Another ODNI staffer who had been waiting for Coats outside the Oval Office talked to Gistaro a few minutes later and recalled Gistaro reporting that Coats was upset because the President had asked him to contact Corney to convince him there was nothing to the Russia investigation. 343 On Saturday, March 25 , 2017, three days after the meeting in the Oval Office, the President called Coats and again complained about the Russia investigations, saying words to the effect of, "I can ' t do anything with Russia, there's things I'd like to do with Russia, with trade, with ISIS, they're all over me with this."344 Coats told the President that the investigations were going to go on and the best thing to do was to let them run their course. 345 Coats later testified in a congressional hearing that he had "never felt pressure to intervene or interfere in any way and shape-with shaping intelligence in a political way, or in relationship .. . to an ongoing investigation." 346 On March 26, 2017, the day after the President called Coats, the President called NSA Director Admiral Michael Rogers.347 The President expressed frustration with the Russia investigation, saying that it made relations with the Russians difficult. 348 The President told 349 Rogers "the thing with the Russians [wa]s messing up" his ability to get things done with Russia. The President also said that the news stories linking him with Russia were not true and asked Rogers if he could do anything to refute the stories. 350 Deputy Director of the NSA Richard Ledgett, who was present for the call, said it was the most unusual thing he had experienced in 40 years of government service. 351 After the call concluded, Ledgett prepared a memorandum that he and Rogers both signed documenting the content of the conversation and the President's request, and they placed the memorandum in a safe.352 But Rogers did not perceive the President's request to be an order, and the President did not ask Rogers to push back on the Russia 342

Gistaro 6/ 14/ 17 302, at 2.

343

Culver 6/14/17 302, at 2-3.

344

Coats 6/ 14/17 302, at 4.

345

Coats 6/ 14/ 17 302, at 4; Dempsey 6/14/17 302, at 3 (Coats relayed that the President had asked several times what Coats could do to help "get [the investigation] done," and Coats had repeatedly told the President that fastest way to "get it done" was to let it run its course) . . 346

Hearing on Foreign Intelligence Surveillance Act Before the Senate Select Intelligence Committee, 115th Cong. (June 7, 2017) (CQ Cong. Transcripts, at 25) (testimony by Daniel Coats, Director ofNational Intelligence). 347

Rogers 6/12/17 302, at 3-4.

348

Rogers 6/ 12/17 302, at 4.

349

Ledgett 6/ 13/17 302, at 1-2; see Rogers 6/ 12/ 17 302, at 4.

350

Rogers 6/12/1 7 302, at 4-5 ; Ledgett 6/13/17 302, at 2.

351

Ledgett 6/ 13/ 17 302, at 2.

352

Ledgett 6/13/17 302, at 2-3; Rogers 6/12/17 302, at 4.

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investigation itself. 353 Rogers later testified in a congressional hearing that as NSA Director he had " never been directed to do anything [he] believe[d] to be illegal, immoral, unethical or inappropriate" and did "not recall ever feeling pressured to do so." 354 In addition to the specific comments made to Coats, Pompeo, and Rogers, the President spoke on other occasions in the presence of intelligence community officials about the Russia investigation and stated that it interfered with his ability to conduct foreign relations. 355 On at least two occasions, the President began Presidential Daily Briefings by stating that there was no collusion with Russia and he hoped a press statement to that effect could be issued. 356 Pompeo recalled that the President vented about the investigation on multiple occasions, complaining that there was no evidence against him and that nobody would publicly defend him. 357 Rogers recalled a private conversation with the President in which he "vent[ ed]" about the investigation, said he had done nothing wrong, and said something like the "Russia thing has got to go away."358 Coats recalled the President bringing up the Russia investigation several times, and Coats said he finally told the President that Coats's job was to provide intelligence and not get involved in investigations. 359 4. The President Asks Corney to "Lift the Cloud" Created by the Russia Investigation On the morning of March 30, 2017, the President reached out to Corney directly about the Russia investigation. 360 According to Corney's contemporaneous record of the conversation, the President said "he was trying to run the country and the cloud of this Russia business was making

353

Rogers 6/ 12/17 302, at 5; Ledgett 6/ 13/17 302, at 2.

354

Hearing on Foreign Intelligence Surveillance Act Before the Senate Select Intelligence Committee, 115th Cong. (June 7, 2017) (CQ Cong. Transcripts, at 20) (testimony by Admiral Michael Rogers, Director of the National Security Agency). 355

Gistaro 6/14/17 302, at I, 3; Pompeo 6/28/17 302, at 2-3.

356

Gistaro 6/ 14/ l 7 302, at 1.

357

Pompeo 6/28/17 302, at 2.

358

Rogers 6/ 12/17 302, at 6.

359

Coats 6/14/17 302, at 3-4.

360 SCRO 12b_ 000044 (President's Daily Diary, 3/30/17, reflecting call to Corney from 8: 14 - 8 :24 a.m.); Corney 3/30/17 Memorandum, at I ("The President called me on my CMS phone at 8:13 am today . . . . The call lasted 11 minutes (about IO minutes when he was connected)."; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 6).

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that difficult."361 The President asked Corney what could be done to " lift the cloud." 362 Corney explained "that we were running it down as quickly as possible and that there would be great benefit, if we didn't find anything, to our Good Housekeeping seal of approval, but we had to do our work."363 Corney also told the President that congressional leaders were aware that the FBT was not investigating the President personally.364 The President said several times, " We need to get that fact out."365 The President commented that if there was "some satellite" (which Corney took to mean an associate of the President's or the campaign) that did something, "it would be good to find that out" but that he himself had not done anything wrong and he hoped Corney "would find a way to get out that we weren't investigating him ." 366 After the call ended, Corney called Boente and told him about the conversation, asked for guidance on how to respond, and said 367 he was uncomfortable with direct contact from the President about the investigation. On the morning of April 11, 2017, the President called Corney again. 368 According to Corney's contemporaneous record of the conversation, the President said he was "following up to see if [Corney] did what [the President] had asked last time-getting out that he personally is not under investigation."369 Corney responded that he had passed the request to Boente but not heard back, and he informed the President that the traditional channel for such a request would be to

361

Corney 3/30/17 Memorandum, at 1. Corney subsequently testified before Congress about this conversation and described it to our Office; his recollections were consistent with his memorandum. Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 6); Corney 11 / 15/17 302, at 18. 362

Corney 3/30/ 17 Memorandum, at 1; Corney 11 /15/17 302, at 18.

363

Corney 3/30/17 Memorandum, at 1; Corney 11/15/ 17 302, at 18.

364

Corney 3/30/ 17 Memorandum, at 1; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 6). 365

Corney 3/30/17 Memorandum, at l; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBT, at 6). 366

Corney 3/30/17 Memorandum, at I; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 6-7). 367

Corney 3/30/17 Memorandum, at 2; Boente 1/31/18 302, at 6-7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 7). 368

SCR012b 000053 (President's Daily Diary, 4/ 11/17, reflecting call to Corney from 8:27- 8:31 a.m .); Corney 4/11/17 Memorandum, at I ("I returned the president's call this morning at 8:26 am EDT. We spoke for about four minutes."). 369

Corney 4/11/17 Memorandum, at 1. Corney subsequently testified before Congress about this conversation and his recollections were consistent with his memo. Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 7).

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have the White House Counsel contact DOJ leadership.370 The President said he would take that step.371 The President then ~dded, "Because I have been very loyal to you, very loyal, we had that thing, you know." 372 In a televised interview that was taped early that afternoon, the President was asked if it was too late for him to ask Corney to step down; the President responded, "No, it's not too late, but you know, I have confidence in him . We'll see what happens. You know, it's going to be interesting."373 After the interview, Hicks told the President she thought the President' s comment about Corney should be removed from the broadcast of the interview, but the President wanted to keep it in, which Hicks thought was unusual. 374 Later that day, the President told senior advisors, including McGahn and Priebus, that he had reached out to Corney twice in recent weeks.375 The President acknowledged that McGahn would not approve of the outreach to Corney because McGahn had previously cautioned the President that he should not talk to Corney directly to prevent any perception that the White House was interfering with investigations. 376 The President told McGahn that Corney had indicated the FBI could make a public statement that the President was not under investigation if the Department of Justice approved that action. 377 After speaking with the President, McGahn followed up with Boente to relay the President ' s understanding that the FBI could make a public announcement if the Department of Justice cleared it. 378 McGahn recalled that Boente said Corney had told him there was nothing obstructive about the calls from the President, but they made Corney uncomfortable.379 According to McGahn, Boente responded that he did not want to issue a statement about the President not being under investigation because of the potential political ramifications and did not want to order Corney to do it because that action could prompt the

Â°Corney 4/11/17 Memorandum, at I.

37 1

Corney 4/ 11/17 Memorandum, at I.

372

Corney 4/ 11/17 Memorandum, at I. In a footnote to this statement in his memorandum, Corney wrote, "His use of these words did not fit with the -flow of the call, which at that point had moved away from any request of me, but I have recorded it here as it happened." 373

Maria Bartiromo, Interview with President Trump, Fox Business Network (Apr. 12, 2017); SCRO l 2b_ 000054 (President's Daily Diary, 4/11/17, reflecting Bartiromo interview from 12:30 - 12:55 p.m.). 374

Hicks 12/8/17 302, at 13.

375

Priebus 10/13/ 17 302, at 23; McGahn 12/ 12/ 17 302, at 9.

376

Priebus 10/ 13/ 17 302, at 23 ; McGahn 12/ 12/ 17 302, at 9; see McGahn 11 /30/17 302, at 9; Dhillon 11 /21/17 302, at 2 (stating that White House Counsel attorneys had advised the President not to contact the FBI Director directly because it could create a perception he was interfering with investigations). Later in April, the President told other attorneys in the White House Counsel's Office that he had called Corney even though he knew they had advised against direct contact. Dhillon 11 /21/17 302, at 2 (recalling that the President said, "I know you told me not to, but I called Corney anyway."). 377

McGahn 12/ 12/ 17 302, at 9.

378

McGahn 12/12/ 17 302, at 9.

379

McGahn 12/ 12/ 17 302, at 9; see Boente 1/31/18 302, at 6 (recalling that Corney told him after the March 30, 2017 call that it was not obstructive).

U.S. Department of Justice AttorAey '.Vorlc Proettet II May COf1taiA Material Proteetee UReer Fee. R. Crim . P. 6(e)

appointment of a Special Counsel. 380 Boente did not recall that aspect of his conversation with McGahn, but did recall telling McGahn that the direct outreaches from the President to Corney were a problem .381 Boente recalled that McGahn agreed and said he would do what he could to address that issue.382

Analysis In analyzing the President's reaction to Sessions' s recusal and the requests he made to Coats, Pompeo, Rogers, and Corney, the following evidence is relevant to the elements of obstruction of justice: a. Obstructive act. The evidence shows that, after Corney's March 20, 2017 testimony, the President repeatedly reached out to intelligence agency leaders to discuss the FBT's investigation. But witnesses had different recollections of the precise content of those outreaches. Some ODNI officials recalled that Coats told them immediately after the March 22 Oval Office meeting that the President asked Coats to intervene with Corney and "stop" the investigation. But the first-hand witnesses to the encounter remember the conversation differently. Pompeo had no memory of the specific meeting, but generally recalled the President urging officials to get the word out that the President had not done anything wrong related to Russia. Coats recalled that the President asked that Coats state publicly that no link existed between the President and Russia, but did not ask him to speak with Corney or to help end the investigation. The other outreaches by the President during this period were similar in nature: The President asked Rogers if he could do anything to refute the stories linking the President to Russia, and the President asked Corney to make a public statement that would " lift the cloud" of the ongoing investigation by making clear that the President was not personally under investigation. These requests, while significant enough that Rogers thought it important to document the encounter in a written memorandum, were not interpreted by the officials who received them as directives to improperly interfere with the investigation. Nexus to a proceeding. At the time of the President' s outreaches to leaders of the b. intelligence agencies in late March and early April 2017, the FBI's Russia investigation did not yet involve grand jury proceedings. The outreaches, however, came after and were in response to Corney' s March 20, 2017 announcement that the FBT, as a part of its counterintelligence mission, was conducting an investigation into Russian interference in the 2016 presidential election. Corney testified that the investigation included any links or coordination with Trump campaign officials and would "include an assessment of whether any crimes were committed." c. Intent. As described above, the evidence does not establish that the President asked or directed intelligence agency leaders to stop or interfere with the FBI's Russia investigationand the President affirmatively told Corney that if "some satellite" was involved in Russian election interference "it would be good to find that out." But the President's intent in trying to prevent Sessions' s recusal, and in reaching out to Coats, Pompeo, Rogers, and Corney following 380

McGahn 12/12/ 17 302, at 9-10.

381

Boente 1/31 / 18 302, at 7; McGahn 12/12/17 302, at 9.

382

Boente 1/31/ 18 302, at 7. 60

U.S. Department of Justice Al:torAey Work Protlttet // MB::," CoAtB:ifl ~foteriB:l Proteetetl UAtler Fee. R. Crim. P. 6(e)

Corney's public announcement of the FBT's Russia investigation, is nevertheless relevant to understanding what motivated the President's other actions towards the investigation. The evidence shows that the President was focused on the Russia investigation's implications for his presidency-and, specifically, on dispelling any suggestion that he was under investigation or had links to Russia. In early March, the President attempted to prevent Sessions's recusal, even after being told that Sessions was following DOJ conflict-of-interest rules. After Sessions recused, the White House Counsel's Office tried to cut off further contact with Sessions about the matter, although it is not clear whether that direction was conveyed to the President. The President continued to raise the issue of Sessions 's recusal and, when he had the opportunity, he pulled Sessions aside and urged him to unrecuse. The President also told advisors that he wanted an Attorney General who would protect him, the way he perceived Robert Kennedy and Eric Holder to have protected their presidents. The P~esident made statements about being able to direct the course of criminal investigations, saying words to the effect of, "You're telling me that Bobby and Jack didn't talk about investigations? Or Obama didn't tell Eric Holder who to investigate?" After Corney publicly confirmed the existence of the FBT's Russia investigation on March 20, 2017, the President was "beside himself' and expressed anger that Corney did not issue a statement correcting any misperception that the President himself was under investigation. The President sought to speak with Acting Attorney General Boente directly and told McGahn to contact Boente to request that Corney make a clarifying statement. The President then asked other intelligence community leaders to make public statements to refute the suggestion that the President had links to Russia, but the leaders told him they could not publicly comment on the investigation. On March 30 and April 11, against the advice of White House advisors who had informed him that any direct contact with the FBI could be perceived as improper interference in an ongoing investigation, the President made personal outreaches to Corney asking him to "lift the cloud" of the Russia investigation by making public the fact that the President was not personally under investigation. Evidence indicates that the President was angered by both the existence of the Russia investigation and the public reporting that he was under investigation, which he knew was not true based on Corney's representations. The President complained to advisors that if people thought Russia helped him with the election, it would detract from what he had accomplished. Other evidence indicates that the President was concerned about the impact of the Russia investigation on his ability to govern. The President complained that the perception that he was under investigation was hurting his ability to conduct foreign relations, particularly with Russia. The President told Coats he "can't do anything with Russia," he told Rogers that "the thing with the Russians" was interfering with his ability to conduct foreign affairs, and he told Corney that "he was trying to run the country and the cloud of this Russia business was making that difficult."

U.S. Department of Justice Aft:6mey W6rk Pr6et:tet // Mtty C6HtaiH Matel'ial P1'6teetee UHeer Fee. R. Crim. P. 6Ee)

Events Leading Up To and Surrounding the Termination of FBI Director Corney Overview

Corney was scheduled to testify before Congress on May 3, 2017. Leading up to that testimony, the President continued to tell advisors that he wanted Corney to make public that the President was not under investigation. At the hearing, Corney declined to answer questions about the scope or subjects of the Russia investigation and did not state publicly that the President was not under investigation. Two days later, on May 5, 2017, the President told close aides he was going to fire Corney, and on May 9, he did so, using his official termination letter to make public that Corney had on three occasions informed the President that he was not under investigation. The President decided to fire Corney before receiving advice or a recommendation from the Department of Justice, but he approved an initial public account of the termination that attributed it to a recommendation from the Department of Justice based on Corney' s handling of the Clinton email investigation. After Deputy Attorney General Rod Rosenstein resisted attributing the firing to his recommendation, the President acknowledged that he intended to fire Corney regardless of the DOJ recommendation and was thinking of the Russia investigation when he made the decision. The President also told the Russian Foreign Minister, "I just fired the head of the F.B.l. He was crazy, a real nut job. [ faced great pressure because of Russia. That's taken off... . . I'm not under investigation."

Evidence I . Corney Testifies Before the Senate Judiciary Committee and Declines to Answer Questions About Whether the President is Under Investigation On May 3, 2017, Corney was scheduled to testify at an FBI oversight hearing before the Senate Judiciary Committee.383 McGahn recalled that in the week leading up to the hearing, the President said that it would be the last straw if Corney did not take the opportunity to set the record straight by publicly announcing that the President was not under investigation.384 The President had previously told McGahn that the perception that the President was under investigation was hurting his ability to carry out his presidential duties and deal with foreign leaders. 385 At the hearing, Corney declined to answer questions about the status of the Russia investigation, stating "[t]he Department of Justice ha[ d] authorized [him] to confirm that [the Russia investigation] exists," but that he was "not going to say another word about it" until the investigation was completed. 386 Corney also declined to answer questions about whether investigators had "ruled 383

Hearing on Oversight of the FBI before the Senate Judiciary Committee, I 15th Cong. (May 3,

384

McGahn 12/12/ 17 302, at 10-11.

2017).

385

McGahn 12/12/ 17 302, at 7, 10-11 (McGahn believed that two foreign leaders had expressed sympathy to the President for being under investigation); SC_AD_00265 (Donaldson 4/11/17 Notes) ("P Called Corney - Day we told him not to? 'You are not under investigation' NK/China/Sapping Credibility"). 386

Hearing on FBI Oversight Before the Senate Judiciary Committee, 115th Cong. (CQ Cong. Transcripts, at 70) (May 3, 2017) (testimony by FBI Director James Corney). Corney repeated this point

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out anyone in the Trump campaign as potentially a target of th[e] criminal investigation," including whether the FBI had " ruled out the president of the United States." 387 Corney was also asked at the hearing about his decision to announce 11 days before the presidential election that the FBI was reopening the Clinton email investigation. 388 Corney stated that it made him "mildly nauseous to think that we might have had some impact on the election," but added that "even in hindsight" he "would make the same decision."389 He later repeated that he had no regrets about how he had handled the email investigation and believed he had "done the right thing at each turn." 390 In the afternoon following Corney' s testimony, the President met with McGahn, Sessions, and Sessions's Chief of Staff Jody Hunt. 39 1 At that meeting, the President asked McGahn how Corney had done in his testimony and McGahn relayed that Corney had declined to answer questions about whether the President was under investigation. 392 The President became very upset and directed his anger at Sessions. 393 According to notes written by Hunt, the President said, "This is terrible Jeff. It' s all because you recused. AG is supposed to be most important appointment. Kennedy appointed his brother. Obama appointed Holder. I appointed you and you recused yourself. You left me on an island. I can't do anything." 394 The President said that the recusal was unfair and that it was interfering with his ability to govern and undermining his authority with foreign leaders. 395 Sessions responded that he had had no choice but to recuse, and it was a mandatory rather than discretionary decision.396 Hunt recalled that Sessions also stated at several times during his testimony. See id. at 26 (explaining that he was "not going to say another peep about [the investigation] until we' re done"); id. at 90 (stating that he would not provide any updates about the status of investigation "before the matter is concluded") . 387 Hearing on FBI Oversight Before the Senate Judiciary Committee, I 15th Cong. (May 3, 2017) (CQ Cong. Transcripts, at 87-88) (questions by Sen. Blumenthal and testimony by FBI Director James B. Corney). 388

Hearing on FBI Oversight Before the Senate Judiciary Committee, 115th Cong. (May 3, 2017) (CQ Cong. Transcripts, at 15) (question by Sen. Feinstein). 389 Hearing on FBI Oversight Before the Senate Judiciary Committee, I 15th Cong. (May 3, 2017) (CQ Cong. Transcripts, at 17) (testimony by FBI Director James 8. Corney). 390

Hearing on FBI Oversight Before the Senate Judiciary Committee, I 15th Cong. (May 3, 2017) (CQ Cong. Transcripts, at 92) (testimony by FBI Director James B. Corney). 391

Sessions I / 17/ 18 302, at 8; Hunt 2/ I / 18 302Âˇ, at 8.

392

Sessions l/ 17/ 18 302, at 8; Hunt-000021 (Hunt 5/3/17 Notes); McGahn 3/8/18 302, at 6.

393

Sessions 1/ 17/ 18 302, at 8-9.

394

Hunt-000021 (Hunt 5/3/17 Notes). Hunt said that he wrote down notes describing this meeting and others with the President after the events occurred. Hunt 2/1 / 17 302, at 2. 395

Hunt-000021-22 (Hunt 5/3/ 17 Notes) ("I have foreign leaders saying they are sorry I am being investigated."); Sessions 1/17/ 18 302, at 8 (Sessions recalled that a Chinese leader had said to the President that he was sorry the President was under investigation, which the President interpreted as undermining his authority); Hunt 2/1/ l 8 302, at 8. 396

Sessions 1/17/18 302, at 8; Hunt-000022 (Hunt 5/3/ 17Notes).

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some point during the conversation that a new start at the FBI would be appropriate and the President should consider replacing Corney as FBI director. 397 According to Sessions, when the meeting concluded, it was clear that the President was unhappy with Corney, but Sessions did not think the President had made the decision to terminate Comey. 398 Bannon recalled that the President brought Corney up with him at least eight times on May 3 and May 4, 2017. 399 According to Bannon, the President said the same thing each time: "He told me three times I'm not under investigation . He' s a showboater. He ' s a grandstander. I don't know any Russians. There was no collusion."400 Bannon told the President that he could not fire Corney because "that ship had sailed."401 Bannon also told the President that firing Corney was not going to stop the investigation, cautioning him that he could fire the FBI director but could not fire the FBT. 402 2. The President Makes the Decision to Terminate Corney The weekend following Corney's May 3, 2017 testimony, the President traveled to his resort in Bedminster, New Jersey.403 At a dinner on Friday, May 5, attended by the President and various advisors and family members, including Jared Kushner and senior advisor Stephen Miller, the President stated that he wanted to remove Corney and had ideas for a letter that would be used to make the announcement. 404 The President dictated arguments and specific language for the letter, and Miller took notes. 405 As reflected in the notes, the President told Miller that the letter should start, "While I greatly appreciate you informing me that I am not under investigation concerning what I have often stated is a fabricated story on a Trump-Russia relationship pertaining to the 2016 presidential election, please be informed that I, and I believe the American public - including Os and Rs - have lost faith in you as Director of the FBT." 406 Following the dinner, Miller prepared a termination letter based on those notes and research he conducted to support the President's arguments.407 Over the weekend, the President provided several rounds of

397

Hunt-000022 (Hunt 5/3/17 Notes).

398

Sessions 1/ 17/ 18 302, at 9.

399

Bannon 2/12/18 302, at 20.

400

Bannon 2/ 12/ 18 302, at 20.

40 1

Bannon 2/12/18 302, at 20.

402

Bannon 2/12/18 302, at 20-21; see Priebus I0/ 13/17 302, at 28.

403

S. Miller 10/31/17 302, at 4-5 ; SCR025_000019 (President's Daily Diary, 5/4/ 17).

404

S. Miller 10/31/17 302, at 5.

405

S. Miller 10/3 1/ 17 302, at 5-6.

406

S. Miller 5/5/17 Notes, at 1; see S. Miller 10/31 / 17 302, at 8.

407

S. Miller 10/31/17 302, at 6.

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edits on the draft letter.408 Miller said the President was adamant that he not tell anyone at the White House what they were preparing because the President was worried about leaks. 409 In his discussions with Miller, the President made clear that he wanted the letter to open with a reference to him not being under investigation. 410 Miller said he believed that fact was important to the President to show that Corney was not being terminated based on any such investigation .411 According to Miller, the President wanted to establish as a factual matter that Corney had been under a " review period" and did not have assurance from the President that he would be permitted to keep his job. 412 The final version of the termination letter prepared by Miller and the President began in a way that closely tracked what the President had dictated to Miller at the May 5 dinner: "Dear Director Corney, While I greatly appreciate your informing me, on three separate occasions, that I am not under investigation concerning the fabricated and politically-motivated allegations of a Trump-Russia relationship with respect to the 2016 Presidential Election, please be informed that I, along with members of both political parties and, most importantly, the American Public, have lost faith in you as the Director of the FBI and you are hereby terminated."4 13 The four-page letter went on to critique Corney 's judgment and conduct, including his May 3 testimony before the Senate Judiciary Committee, his handling of the Clinton email investigation, and his failure to hold leakers accountable.414 The letter stated that Corney had "asked [the President] at dinner shortly after inauguration to let [Corney] stay on in the Director' s role, and [the President] said that [he] would consider it," but the President had "concluded that [he] ha[ d] no alternative but to find new leadership for the Bureau - a leader that restores confidence and trust."4 15 In the morning of Monday, May 8, 2017, the President met in the Oval Office with senior advisors, including McGahn, Priebus, and Miller, and informed them he had decided to terminate Comey. 416 The President read aloud the first paragraphs of the termination letter he wrote with

408

S. Miller 10/31/17 302, at 6-8.

409

S. Miller 10/31 /17 302, at 7. Miller said he did not want Priebus to be blindsided, so on Sunday night he called Priebus to tell him that the President had been thinking about the "Corney situation" and there would be an important discussion on Monday. S. Miller I0/31/17 302, at 7. 41 0

S. Miller 10/31/ 17 302, at 8.

41 1

S. Miller 10/31 /17 302, at 8.

412

S. Miller 10/31/ 17 302, at 10.

413

SCR013c_000003-06 (Draft Termination Letter to FBI Director Corney).

414

SCR013c_000003-06 (Draft Te1mination Letter to FBI Director Corney). Kushner said that the termination letter reflected the reasons the President wanted to fire Corney and was the truest representation of what the President had said during the May 5 dinner. Kushner 4/11 / 18 302, at 25. 415

SCRO 13c_000003 (Draft Termination Letter to FBI Director Corney).

416

McGahn 12/12/ 17 302, at 11 ; Priebus 10/ 13/17 302, at 24; S. Miller I 0/31/17 302, at 11; Dhillon 11 /21 /17 302, at 6; Eisenberg 11 /29/17 302, at 13.

U.S. Department of Justice AttorRe)' Work Proattet // M!i)' CoRt!iiR M!iteri!il Preteetea URaer Fee. R. Criffl. P. 6(e)

Miller and conveyed that the decision had been made and was not up for discussion. 417 The President told the group that Miller had researched the issue and determined the President had the authority to terminate Corney without cause. 418 In an effort to slow down the decision-making process, McGahn told the President that DOJ leadership was currently discussing Corney's status and suggested that White House Counsel's Office attorneys should talk with Sessions and Rod Rosenstein, who had recently been confirmed as the Deputy Attorney General. 4 19 McGahn said that previously scheduled meetings with Sessions and Rosenstein that day would be an opportunity to find out what they thought about firing Comey. 420 At noon, Sessions, Rosenstein, and Hunt met with McGahn and White House Counsel 's Office attorney Uttam Dhillon at the White House. 421 McGahn said that the President had decided to fire Corney and asked for Sessions's and Rosenstein's views. 422 Sessions and Rosenstein criticized Corney and did not raise concerns about replacing him. 423 McGahn and Dhillon said the fact that neither Sessions nor Rosenstein objected to replacing Corney gave them peace of mind that the President's decision to fire Corney was not an attempt to obstruct justice.424 An Oval Office meeting was scheduled later that day so that Sessions and Rosenstein could discuss the issue with the President.425 At around 5 p .m ., the President and several White House officials met with Sessions and Rosenstein to discuss Comey. 426 The President told the group that he had watched Corney's May

417 S. Miller I0/31/ 17 302, at 11 (observing that the President started the meeting by saying, "I'm going to read you a letter. Don't talk me out of this. I've made my decision."); Dhillon 11 /2 1/17 302, at 6 (the President announced in an irreversible way that he was firing Corney); Eisenberg 11/29/17 302, at 13 (the President did not leave whether or not to fire Corney up for discussion); Priebus I0/ 13/17 302, at 25; McGahn 12/12/ 17 302, at 11-12. 418

Dhillon 302 11/21/17, at6; Eisenberg 11/29/ 17 302, at 13; McGahn 12/12/_17 302, at 11.

419

McGahn 12/ 12/17 302, at 12, 13; S. Miller 10/31/17 302, at 11 ; Dhillon 11 /21 / 17 302, at 7. Because of the Attorney General's recusal, Rosenstein became the Acting Attorney General for the Russia investigation upon his confirmation as Deputy Attorney General. See 28 U.S.C. ยง 508(a) ("In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office"). 420

McGahn 12/12/17 302, at 12.

42 1

Dhillon 11/21/ 17 302, at 7; McGahn 12/ 12/ 17 302, at 13; Gauhar-000056 (Gauhar 5/16/ 17 Notes); see Gauhar-000056-72 (2/1 1/19 Memorandum to File attaching Gauhar handwritten notes) ("Ms. Gauhar determined that she likely recorded all these notes during one or more meetings on Tuesday, May 16, 2017."). 422

McGahn 12/12/17 302, at 13; see Gauhar-000056 (Gauhar 5/16/17 Notes).

423

Dhillon 11 /21/17 302, at 7-9; Sessions 1/17/18 302, at 9; McGahn 12/12/17 302, at 13.

424

McGahn 12/12/ 17 302, at 13; Dhillon 11 /2 1/ 17 302, at 9.

425

Hunt-000026 (Hunt 5/8/ 17 Notes); see Gauhar-000057 (Gauhar 5/16/17 Notes).

426

Rosenstein 5/23/ 17 302, at 2; McGahn 12/12/17 302, at 14; see Gauhar-000057 (Gauhar 5/ 16/17

Notes).

U.S . Department of Justice Attorfley Work Protittet // Ma)Âˇ CotttaiR Material Pt'oteeteti Utttier Feti. R. Crim. P. 6(e)

3 testimony over the weekend and thought that something was "not right" with Comey.427 The President said that Corney should be removed and asked Sessions and Rosenstein for their views .428 Hunt, who was in the room, recalled that Sessions responded that he had previously recommended that Corney be replaced.429 McGahn and Dhillon said Rosenstein described his concerns about Corney's handling of the Clinton email investigation.430 The President then distributed copies of the termination letter he had drafted with Miller, and the discussion turned to the mechanics of how to fire Corney and whether the President's letter should be used. 431 McGahn and Dhillon urged the President to permit Corney to resign, but the President was adamant that he be fired. 432 The group discussed the possibility that Rosenstein and Sessions could provide a recommendation in writing that Corney should be removed .433 The President agreed and told Rosenstein to draft a memorandum, but said he wanted to receive it first thing the next morning.434 Hunt' s notes reflect that the President told Rosenstein to include in his recommendation the fact that Corney had refused to confirm that the President was not personally under investigation .435 According to notes taken by a senior DOJ official of Rosenstein's description of his meeting with the President, the President said, "Put the Russia stuff in the memo."436 Rosenstein responded that the Russia investigation was not the basis of his recommendation, so he did not think Russia should be mentioned.437 The President told Rosenstein he would appreciate it if Rosenstein put it in his letter anyway. 438 When Rosenstein

427

Hunt-000026-27 (Hunt 5/8/ 17 Notes).

428

Sessions 1/ 17/18 302, at 10; see Gauhar-000058 (Gauhar 5/16/17 Notes) ("POTUS to AG: What is your rec?"). 429

Hunt-000027 (Hunt 5/8/ 17 Notes).

430

McGahn 12/12/17 302, at 14; Dhillon 11/21/17 302, at 7.

431

Hunt-000028 (Hunt 5/8/17 Notes).

432

McGahn 12/12/1 7 3 02, at 13.

433

Hunt-000028-29 (Hunt 5/8/ 17 Notes).

434

McCabe 9/26/17 302, at 13; Rosenstein 5/23/17 302, at 2; see Gauhar-000059 (Gauhar 5/16/ 17 Notes) ("POTUS tells DAG to write a memo"). 435

Hunt-000028-29 (Hunt 5/8/ 17 Notes) ("POTUS asked if Rod 's recommendation would include the fact that although Corney talks about the investigation he refuses to say that the President is not under investigation.. .. So it would be good if your recommendation would make mention of the fact that Corney refuses to say public[ly] what he said privately 3 times."). 436

Gauhar-000059 (Gauhar 5/16/17 Notes).

437

Sessions 1/ 17/ 18 302 at IO; McCabe 9/26/17 302, at 13; see Gauhar-000059 (Gauhar 5/ 16/17

438

Gauhar-000059 (Gauhar 5/ 16/ 17 Notes); McCabe 5/16/17 Memorandum 1; McCabe 9/26/ 17

Notes). 302, at 13.

U.S. Department of Justice At:terfley Werk Pretittet // May Cef!taifl Material Preteeteti Ufltier Feti. R. Crim.. P. 6(e)

left the meeting, he knew that Corney would be terminated, and he told DOJ colleagues that his own reasons for replacing Corney were " not [the President's] reasons." 439 On May 9, Hunt delivered to the White House a letter from Sessions recommending Corney ' s removal and a memorandum from Rosenstein, addressed to the Attorney General, titled " Restoring Public Confidence in the FBT." 440 McGahn recalled that the President liked the DOJ letters and agreed that they should provide the foundation for a new cover letter from the President accepting the recommendation to terminate Comey. 44 1 Notes taken by Donaldson on May 9 reflected the view of the White House Counsel's Office that the President ' s original termination letter should "[n Jot [seethe] light of day" and that it would be better to offer " [n ]o other rationales" for the firing than what was in Rosenstein's and Sessions ' s memoranda .442 The President asked Miller to draft a new termination letter and directed Miller to say in the letter that Corney had informed the President three times that he was not under investigation.443 McGahn, Priebus, and Dhillon objected to including that language, but the President insisted that it be included.444 McGahn, Priebus, and others perceived that language to be the most important part of the letter to

439

Rosenstein 5/23/17 302, at 2; Gauhar-000059 (Gauhar 5/ 16/17 Notes) ("DAG reasons not their reasons [POTUS]"); Gauhar-000060 (Gauhar 5/ 16/ 17 Notes)(" I' 1 draft had a recommendation. Took it out b/c knew decision had already been made."). 440

Rosenstein 5/23/ 17 302, at 4; McGahn 12/ 12/ 17 302, at 15; 5/9/ 17 Letter, Sessions to President Trump (" Based on my evaluation, and for the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI."); 5/9/ 17 Memorandum, Rosenstein to Sessions (concluding with, "The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary Âˇcorrective actions ."). 441

S. Miller I 0/3 1/ 17 302, at 12; McGahn 12/ 12/17 302, at 15; Hunt-00003 I (Hunt 5/9/ l 7 Notes).

442

SC_AD_ 00342 (Donaldson 5/9/ 17 Notes). Donaldson also wrote "[i]s this the beginning of the end?" because she was worried that the decision to terminate Corney and the manner in which it was carried out would be the end of the presidency. Donaldson 11 /6/ 17 302, at 25. 443

S. Miller I0/31 / 17 302, at 12; McGahn 12/12/ 17 302, at 15; Hunt-000032 (Hunt 5/9/ 17 Notes).

444

McGahn 12/ 12/17 302, at 15; S. Miller 10/31/17 302, at 12; Dhillon 11/21/17 302, at 8, 10; Priebus 10/ 13/ 17 302, at 27; Hunt 2/1/18 302, at 14- 15; Hunt-000032 (Hunt 5/9/17 Notes).

U.S. Department of Justice Atterfte)" \ÂĽerk Preclttet // May Ceflttlifl Material Preteetecl UHcler Fecl. R. CriFH . P. 6(e)

the President. 445 Dhillon made a final pitch to the President that Corney should be permitted to resign, but the President refused. 446 Around the time the President's letter was finalized, Priebus summoned Spicer and the press team to the Oval Office, where they were told that Corney had been terminated for the reasons stated in the letters by Rosenstein and Sessions. 447 To announce Corney's termination, the White House released a statement, which Priebus thought had been dictated by the President.448 In full, the statement read: "Today, President Donald J. Trump informed FBI Director James Corney that he has been terminated and removed from office. President Trump acted based on the clear recommendations of both Deputy Attorney General Rod Rosenstein and Attorney General Jeff Sessions."449 That evening, FBI Deputy Director Andrew McCabe was summoned to meet with the President at the White House.450 The President told McCabe that he had fired Corney because of 451 the decisions Corney had made in the Clinton email investigation and for many other reasons . The President asked McCabe if he was aware that Corney had told the President three times that he was not under investigation. 45 2 The President also asked McCabe whether many people in the FBI disliked Corney and whether McCabe was part of the " resistance" that had disagreed with Corney's decisions in the Clinton investigation.453 McCabe told the President that h e knew Corney had told the President he was not under investigation, that most people in the FBI felt positively about Corney, and that McCabe worked " very closely" with Corney and was part of all the decisions that had been made in the Clinton investigation.454

445 Dhillon 11/21/17 302, at 10; Eisenberg 11/29/17 302, at 15 (providing the view that the President's desire to include the language about not being under investigation was the "driving animus of the whole thing"); Burnham 11 /3/17 302, at 16 (Burnham knew the only line the President cared about was the line that said Corney advised the President on three separate occasions that the President was not under investigation). According to Hunt's notes, the reference to Corney's statement would indicate that " notwithstanding" Corney's having informed the President that he was not under investigation, the President was terminating Corney. Hunt-000032 (Hunt 5/9/ 17 Notes). McGahn said he believed the President wanted the language included so that people would not think that the President had terminated Corney because the President was under investigation. McGahn 12/ 12/ 17 302, at 15. 446

McGahn 12/ 12/17 302, at 15; Donaldson 11 /6/ 17 302, at 25; see SC_AD_00342 (Donaldson 5/9/ 17 Notes) ("Resign vs. Removal. - POTUS/removal."). 447

Spicer 10/ 16/17 302, at 9; McGahn 12/ 12/ 17 302, at 16.

448

Priebus 10/ 13/ 17 302, at 28.

449

Statement ofthe Press Secretary, The White House, Office of the Press Secretary (May 9, 2017).

450

McCabe 9/26/17 302, at 4; SCR025_ 000044 (President's Daily Diary, 5/9/ 17); McCabe 5/10/ 17 Memorandum, at 1. 45 1

McCabe 9/26/17 302, at 5; McCabe 5/10/17 Memorandum, at I.

452

McCabe 9/26/ 17 302, at 5; McCabe 5/10/ 17 Memorandum, at 1-2.

453

McCabe 9/26/17 302, at 5; McCabe 5/ 10/ 17 Memorandum, at 1-2.

454

McCabe 9/26/17 302, at 5; McCabe 5/ 10/ 17 Memorandum, at 1-2.

U.S. Department of Justice Atton~ey Werle Proattet // May CoHtaiH Material Proteetea Uttaer Fee. R. Crim. P. 6(e)

Later that evening, the President told his communications team he was unhappy with the 455 press coverage of Corney's termination and ordered them to go out and defend him. The President also called Chris Christie and, according to Christie, said he was getting "killed" in the press over Corney 's termination. 456 The President asked what he should do. 457 Christie asked, "Did you fire [Corney] because of what Rod wrote in the memo?", and the President responded, "Yes." 458 Christie said that the President should "get Rod out there" and have him defend the decision.459 The President told Christie that this was a "good idea" and said he was going to call Rosenstein right away.460 That night, the White House Press Office called the Department of Justice and said the White House wanted to put out a statement saying that it was Rosenstein's idea to fire Comey. 461 Rosenstein told other DOJ officials that he would not participate in putting out a "false story." 462 The President then called Rosenstein directly and said he was watching Fox News, that the coverage had been great, and that he wanted Rosenstein to do a press conference. 463 Rosenstein responded that this was not a good idea because if the press asked him , he would tell the truth that Corney' s firing was not his idea.464 Sessions also informed the White House Counsel's Office that evening that Rosenstein was upset that his memorandum was being portray ed as the reason for Corney's te rmination.465 In an unplanned press conference late in the evening of May 9, 2017, Spicer told reporters, " It was all [Rosenstein]. No one from the White House . It was a DOJ decision ."466 That evening and the next morning, White House officials and spokespeople continued to maintain that the

455

Spicer 10/ 16/17 302, at 11; Hicks 12/8/ 171 at 18; Sanders 7/3/18 302, at 2.

456

Christie 2/13/19 302, at 6.

457

Christie 2/ 13/ 19 302, at 6.

458

Christie 2/ 13/ 19 302, at 6.

459

Christie 2/13/19 302, at 6.

Â° Christie 2/ 13/19 302, at 6.

461

Gauhar-000071 (Gauhar 5/ 16/17 Notes); Page Memorandum, at 3 (recording events of 5/ 16/ 17); McCabe 9/26/ 17 302, at 14. 462

Rosenstein 5/23/17 302, at 4-5 ; Gauhar-000059 (Gauhar 5/ 16/17 Notes).

463

Rosenstein 5/23/ 17 302, at 4-5; Gauhar-000071 (Gauhar 5/ 16/ 17 Notes).

464 Gauhar-000071 (Gauhar 5/ 16/ 17 Notes). DOJ notes from the week of Corney's firing indicate that Priebus was "screaming" at the DOJ public affairs office trying to get Rosenstein to do a press conference, and the DOJ public affairs office told Priebus that Rosenstein had told the President he was not doing it. Gauhar-000071-72 (Gauhar 5/ 16/17 Notes). 465

McGahn 12/ 12/17 302, at 16-17; Donaldson 11/6/1 7 302, at 26-27; Dhillon 11/21 / 17 302, at 11.

466

Jenna Johnson, After Trump fired Corney, White House staff scrambled to explain why, Washington Post (May 10, 2017) (quoting Spicer). 70

U.S. Department of Justice

Atton1:e:,Âˇ \1/orlc Proattet // May Cot1taiR Material Proteetea URaer Fee. R. Crim. P. 6(e)

President's decision to terminate Corney was driven by the recommendations the President received from Rosenstein and Sessions.467 In the morning on May 10, 2017, President Trump met with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak in the Oval Office. 468 The media subsequently reported that during the May l O meeting the President brought up his decision the prior day to terminate Corney, telling Lavrov and Kislyak: "I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That' s taken off. ... I'm not under investigation."469 The President never denied making those statements, and the White House did not dispute the account, instead issuing a statement that said: "By grandstanding and politicizing the investigation into Russia's actions, James Corney created unnecessary pressure on our ability to engage and negotiate with Russia. The investigation would have always continued, and obviously, the termination of Corney would not have ended it. Once again, the real story is that our national security has been undermined by the leaking of private and highly classified information."470 Hicks said that when she told the President about the reports on his meeting with Lavrov, he did not look concerned and said of Corney, "he is crazy."471 When McGahn asked the President about his comments to Lavrov, the President said it was good that Corney was fired because that took the pressure off by making it clear that he was not under investigation so he could get more work done. 472 That same morning, on May 10, 2017, the President called McCabe. 473 According to a memorandum McCabe wrote following the call, the President asked McCabe to come over to the White House to discuss whether the President should visit FBI headquarters and make a speech to

467

See, e.g., Sarah Sanders, White House Daily Briefing, C-SPAN (May 10, 2017); SCR013_001088 (5/10/ 17 Email, Hemming to Cheung et al.) (internal White House email describing comments on the Corney termination by Vice President Pence) . 468

SCR08_000353 (5/9/17 White House Document, "Working Visit with Foreign Minister Sergey Lavrov of Russia" ); SCR08_001274 (5/ 10/ 17 Email, Ciaramella to Kelly et al.). The meeting had been planned on May 2, 2017, during a telephone call between the President and Russian President Vladimir Putin, and the meeting date was confirmed on May 5, 2017, the same day the President dictated ideas for the Corney termination letter to Stephen Miller. SCR08_001274 (5/ 10/17 Email, Ciaramella to Kelly et al.). 469

Matt Apuzzo et al., Trump Told Russians That Firing "Nut Job " Camey Eased Pressure From Investigation, New York Times (May 19, 2017). 470

SCR08_002117 (5/19/17 Email, Walters to Farhi (CBS News)); see Spicer 10/16/17 302, at 13 (noting he would have been told to "clean it up" if the reporting on the meeting with the Russian Foreign Minister was inaccurate, but he was never told to correct the reporting); Hicks 12/8/17 302, at 19 (recalling that the President never denied making the statements attributed to him in the Lavrov meeting and that the President had said similar things about Corney in an off-the-record meeting with reporters on May 18, 2017, calling Corney a "nut job" and "crazy"). 471

Hicks 12/8/17 302, at 19.

472

McGahn 12/ 12/17 302, at 18.

473

SCR025_000046 (President's Daily Diary, 5/10/17); McCabe 5/10/17 Memorandum, at 1.

U.S. Department of Justice Attomey 'Nork Proauet // May CoHtaiH Material Pf'oteetea UHE:ier Fee. R. Crim. P. 6(e)

employees. 474 The President said he had received "hundreds" of messages from FBI employees indicating their support for terminating Comey. 475 The President also told McCabe that Corney should not have been permitted to travel back to Washington, D.C . on the FBI's airplane after he had been terminated and that he did not want Corney "in the building again," even to collect his belongings. 476 When McCabe met with the President that afternoon, the President, without prompting, told McCabe that people in the FBI loved the President, estimated that at least 80% of the FBI had voted for him, and asked McCabe who he had voted for in the 2016 presidential · election. 477 In the afternoon of May 10, 2017, deputy press secretary Sarah Sanders spoke to the President about his decision to fire Corney and then spoke to reporters in a televised press conference.478 Sanders told reporters that the President, the Department of Justice, and bipartisan members of Congress had lost confidence in Corney, "[a]nd most importantly, the rank and file of the FBI had lost confidence in their director. Accordingly, the President accepted the recommendation of his Deputy Attorney General to remove James Corney from his position."479 In response to questions from reporters, Sanders said that Rosenstein decided "on his own" to review Corney's performance and that Rosenstein decided "on his own" to come to the President on Monday, May 8 to express his concerns about Corney. When a reporter indicated that the "vast majority" of FBI agents supported Corney, Sanders said, "Look, we've heard from countless members of the FBI that say very different things." 48 Following the press conference, Sanders spoke to the President, who told her she did a good job and did not point out any inaccuracies in her comments. 481 Sanders told this Office that her reference to hearing from " countless members of the FBI" was a "slip of the tongue."482 She also recalled that her statement in a separate press interview that rank-and-file FBI agents had lost confidence in Corney was a comment she made "in the heat of the moment" that was not founded on anything. 483

Also on May I 0, 2017, Sessions and Rosenstein each spoke to McGahn and expressed concern that the White House was creating a narrative that Rosenstein had initiated the decision to

474

McCabe 5/ 10/17 Memorandum, at 1.

475

McCabe 5/10/ 17 Memorandum, at I.

476 McCabe 5/ I 0/17 Memorandum, at 1; Rybicki 6/13/ 17 302, at 2. Corney had been visiting the FBI's Los Angeles office when he found out he had been terminated. Corney 11 /15/17 302, at 22. 477

McCabe 5/ 10/ 17 Memorandum, at 1-2. McCabe's memorandum documenting his meeting with the President is consistent with notes taken by the White House Counsel ' s Office. See SC_AD_ 0034 7 (Donaldson 5/10/ 17 Notes). · 478

Sanders 7/3/18 302, at 4; Sarah Sanders, White House Daily Briefing, C-SPAN (May I 0, 2017).

479

Sarah Sanders, White House Daily Briefing, C-SPAN (May I0, 2017); Sanders 7/3/18 302, at 4.

480

Sarah Sanders, White House Daily Briefing, C-SPAN (May 10, 2017).

481

Sanders 7/3/18 302, at 4.

482

Sanders 7/3/18 302, at 4.

483

Sanders 7/3/18 302, at 3.

U.S. Department of Justice Afterttey 'Nerk Preclttet // Mtt)" CetttaiH Material Preteetecl Uttcler Fed. R. Crim. P . 6(e)

fire Comey. 484 The White House Counsel 's Office agreed that it was factually wrong to say that the Department of Justice had initiated Corney's termination,485 and McGahn asked attorneys in the White House Counsel's Office to work with the press office to correct the narrative.486 The next day, on May 11 , 2017, the President participated in an interview with Lester Holt. The President told White House Counsel' s Office attorneys in advance of the interview that the communications team could not get the story right, so he was going on Lester Holt to say what really happened .487 During the interview, the President stated that he had made the decision to fire Corney before the President met with Rosenstein and Sessions. The President told Holt, "I was going to fire regardless of recommendation . . . . [Rosenstein] made a recommendation. But regardless of recommendation, I was going to fire Corney knowing there was no good time to do it." 488 The President continued, "And in fact, when I decided to just do it, T said to myself- I said, you know, this Russia thing with Trump and Russia is a made-up story. It's an excuse by the Democrats for having lost an election that they should've won ." 489 In response to a question about whether he was angry with Corney about the Russia investigation, the President said, "As far as I'm concerned, I want that thing to be absolutely done properly ." 490 The President added that he realized his termination of Corney "probably maybe will confuse people" with the result that it "might even lengthen out the investigation," but he "ha[ d] to do the right thing for the American people" and Corney was "the wrong man for that position."491 The President described Corney as "a showboat" and "a grandstander," said that "[t]he FBI has been in turmoil," and said he wanted "to have a really competent, capable director." 492 The 493 President affirmed that he expected the new FBI director to continue the Russia investigation. On the evening of May 11, 2017, following the Lester Holt interview, the President tweeted, "Russia must be laughing up their sleeves watching as the U.S. tears itse lf apart over a Democrat EXCUSE for losing the election." 494 The same day, the media reported that the President had demanded that Corney pledge his loyalty to the President in a private dinner shortly

484

McGahn 12/ 12/17 302, at 16-17; Donaldson 11 /6/ 17 302, at 26; see Dhillon 11 /21/17 302, at

485

Donaldson 11 /6/ 17 302, at 27.

486

McGahn 12/12/ 17 302, at 17.

487

Dhillon 11 /2 1/ 17 302, at 11.

488

Interview with President Donald Trump, NBC (May 11 , 2017) Transcript, at 2.

489

Interview with President Donald Trump, NBC (May 11, 2017) Transcript, at 2.

490

Interview with President Donald Trump, NBC (May 11, 2017) Transcript, at 3.

491

Interview with President Donald Trump, NBC (May 11, 2017) Transcript, at 3.

492

Interview with President Donald Trump, NBC (May 11, 2017) Transcript, at 1, 5.

493

Interview with President Donald Trump, NBC (May 11, 2017) Transcript, at 7.

494

@realDonaldTrump 5/11/17 (4:34 p.m. ET) Tweet.

11.

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after being sworn in.495 Late in the morning of May 12, 2017, the President tweeted, "Again, the story that there was collusion between the Russians & Trump campaign was fabricated by Dems as an excuse for losing the election."496 The President also tweeted, "James Corney better hope that there are no 'tapes' of our conversations before he starts leaking to the press!" and "When James Clapper himself, and virtually everyone else with knowledge of the witch hunt, says there is no collusion, when does it end?" 497

Analysis In analyzing the President's decision to fire Corney, the following evidence is relevant to the elements of obstruction of justice: a. Obstructive act. The act of firing Corney removed the individual overseeing the FBl's Russia investigation. The President knew that Corney was personally involved in the investigation based on Corney's briefing of the Gang of Eight, Corney's March 20, 2017 public testimony about the investigation, and the President' s one-on-one conversations with Corney. Firing Corney would qualify as an obstructive act if it had the natural and probable effect of interfering with or impeding the investigation-for example, if the termination would have the effect of delaying or disrupting the investigation or providing the President with the opportunity to appoint a director who would take a different approach to the investigation that the President perceived as more protective of his personal interests. Relevant circumstances bearing on that issue include whether the President's actions had the potential to discourage a successor director or other law enforcement officials in their conduct of the Russia investigation. The President fired Corney abruptly without offering him an opportunity to resign, banned him from the FBI building, and criticized him publicly, calling him a "showboat" and claiming that the FBI was "in turmoil" under his leadership. And the President followed the termination with public statements that were highly critical of the investigation; for example, three days after firing Corney, the President referred to the investigation as a "witch hunt" and asked, "when does it end?" Those actions had the potential to affect a successor director's conduct of the investigation. The anticipated effect of removing the FBI director, however, would not necessarily be to prevent or impede the FBI from continuing its investigation. As a general matter, FBI investigations run under the operational direction of FBI personnel levels below the FBI director. Bannon made a similar point when he told the President that he could fire the FBI director, but could not fire the FBI. The White House issued a press statement the day after Corney was fired that said, "The investigation would have always continued, and obviously, the termination of Corney would not have ended it." In addition, in his May 11 interview with Lester Holt, the President stated that he understood when he made the decision to fire Corney that the action might prolong the investigation . And the President chose McCabe to serve as interim director, even 495

Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Corney Demurred., New York Times (May 11, 2017). 496

@rea!DonaldTrump 5/12/17 (7:51 a.m. ET) Tweet.

497

@rea!DonaldTrump 5/ 12/17 (8:26 a.m . ET) Tweet; @rea!DonaldTrump 5/ 12/17 (8:54 a.m. ET)

Tweet.

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though McCabe told the President he had worked "very closely" with Corney and was part of all the decisions made in the Clinton investigation. b. Nexus to a proceeding. The nexus element would be satisfied by evidence showing that a grand jury proceeding or criminal prosecution arising from an FBI investigation was objectively foreseeable and actually contemplated by the President when he terminated Corney. Several facts would be relevant to such a showing. At .the time the President fired Corney, a grand jury had not begun to hear evidence related to the Russia investigation and no grand jury subpoenas had been issued. On March 20, 2017, however, Corney had announced that the FBI was investigating Russia's interference in the election, including "an assessment of whether any crimes were committed." It was widely known that the FBI, as part of the Russia investigation, was investigating the hacking of the DNC's computers- a clear criminal offense. In addition, at the time the President fired Corney, evidence indicates the President knew that Flynn was still under criminal investigation and could potentially be prosecuted, despite the President's February 14, 2017 request that Corney "let[] Flynn go." On March 5, 2017, the White House Counsel's Office was informed that the FBI was asking for transition-period records relating to Flynn-indicating that the FBI was still actively investigating him. The same day, the President told advisors he wanted to call Dana Boente, then the Acting Attorney General for the Russia investigation, to find out whether the White House or the President was being investigated. On March 31, 2017, the President signaled his awareness that Flynn remained in legal jeopardy by tweeting that "Mike Flynn should ask for immunity" before he agreed to provide testimony to the FBI or Congress. And in late March or early April, the President asked McFarland to pass a message to Flynn telling him that the President felt bad for him and that he should stay strong, further demonstrating the President's awareness of Flynn's criminal exposure. c. Intent. Substantial evidence indicates that the catalyst for the President's decision to fire Corney was Corney's unwillingness to publicly state that the President was not personally under investigation, despite the President's repeated requests that Corney make such an announcement. In the week leading up to Corney's May 3, 2017 Senate Judiciary Committee testimony, the President told McGahn that it would be the last straw if Corney did not set the record straight and publicly announce that the President was not under investigation. But during his May 3 testimony, Corney refused to answer questions about whether the President was being investigated. Corney's refusal angered the President, who criticized Sessions for leaving him isolated and exposed, saying "You left me on an island." Two days later, the President told advisors he had decided to fire Corney and dictated a letter to Stephen Miller that began with a reference to the fact that the President was not being investigated: "While I greatly appreciate you informing me that I am not under investigation concerning what I have often stated is a fabricated story on a Trump-Russia relationship .... " The President later asked Rosenstein to include "Russia" in his memorandum and to say that Corney had told the President that he was not under investigation. And the President's final termination letter included a sentence, at the President' s insistence and against McGahn' s advice, stating that Corney had told the President on three separate occasions that he was not under investigation. The President's other stated rationales for why he fired Corney are not similarly supported by the evidence. The termination letter the President and Stephen Miller prepared in Bedminster

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cited Corney's handling of the Clinton email investigation, and the President told McCabe he fired Corney for that reason. But the facts surrounding Corney' s handling of the Clinton email investigation were well known to the President at the time he assumed office, and the President had made it clear to both Corney and the President's senior staff in early 2017 that he wanted Corney to stay on as director. And Rosenstein articulated his criticism of Corney's handling of the Clinton investigation after the President had already decided to fire Corney. The President's draft termination letter also stated that morale in the FBI was at an all-time low and Sanders told the press after Corney's termination that the White House had heard from "countless" FBI agents who had lost confidence in Corney. But the evidence does not support those claims. The President told Corney at their January 27 dinner that "the people of the FBI really like [him]," no evidence suggests that the President heard otherwise before deciding to terminate Corney, and Sanders acknowledged to investigators that her comments were not founded on anything. We also considered why it was important to the President that Corney announce publicly that he was not under investigation. Some evidence indicates that the President believed that the erroneous perception he was under investigation harmed his ability to manage domestic and foreign affairs, particularly in dealings with Russia. The President told Corney that the "cloud" of "this Russia business" was making it difficult to run the country. The President told Sessions and McGahn that foreign leaders had expressed sympathy to him for being under investigation and that the perception he was under investigation was hurting his ability to address foreign relations issues . The President complained to Rogers that "the thing with the Russians [was] messing up" his ability to get things done with Russia, and told Coats, "I can't do anything with Russia, there's things I'd like to do with Russia, with trade, with ISIS, they' re all over me with this." The President also may have viewed Corney as insubordinate for his failure to make clear in the May 3 testimony that the President was not under investigation. Other evidence, however, indicates that the President wanted to protect himself from an investigation into his campaign. The day after learning about the FBl's interview of Flynn, the President had a one-on-one dinner with Corney, against the advice of senior aides, and told Corney he needed Corney's "loyalty." When the President later asked Corney for a second time to make public that he was not under investigation, he brought up loyalty again, saying "Because I have been very loyal to you, very loyal, we had that thing, you know." After the President learned of Sessions's recusal from the Russia investigation, the President was furious and said he wanted an Attorney General who would protect him the way he perceived Robert Kennedy and Eric Holder to have protected their presidents. The President also said he wanted to be able to tell his Attorney General "who to investigate." In addition, the President had a motive to put the FBI's Russia investigation behind him. The evidence does not establish that the termination of Corney was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen,

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was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the ro ress of those efforts. 498 In addition, some witnesses said that s aware that Âˇ Âˇ . at a time when public reports stated that Russian intelligence officials were behind the 499 More hacks, and that Trump privately sought information about future WikiLeaks releases. broadly, multiple witnesses described the President' s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election. 500

iii

Finally, the President and White House aides initially advanced a pretextual reason to the press and the public for Corney's termination. In the immediate aftermath of the firing, the President dictated a press statement suggesting that he had acted based on the DOJ recommendations, and White House press officials repeated that story. But the President had decided to fire Corney before the White House solicited those recommendations. Although the President ultimately acknowledged that he was going to fire Corney regardless of the Department of Justice' s recommendations, he did so only after DOJ officials made clear to him that they would resist the White House's suggestion that they had prompted the process that led to Corney' s termination. The initial reliance on a pretextual justification could support an inference that the President had concerns about providing the real reason for the firing, although the evidence does not resolve whether those concerns were personal, political, or both.

The President's Efforts to Remove the Special Counsel Overview

The Acting Attorney General appointed a Special Counsel on May 17, 2017, prompting the President to state that it was the end of his presidency and that Attorney General Sessions had failed to protect him and should resign. Sessions submitted his resignation, which the President ultimately did not accept. The President told senior advisors that the Special Counsel had conflicts of interest, but they responded that those claims were " ridiculous" and posed no obstacle to the Special Counsel ' s service. Department of Justice ethics officials similarly cleared the Special Counsel ' s service. On June 14, 2017, the press reported that the President was being personally investigated for obstruction of justice and the President responded with a series of tweets 498

See Volume II, Section TT.K. l, infra.

499

See Volume l, Section III.D.1 , supra.

soo In addition to whether the President had a motive related to Russia-related matters that an FBI investigation could uncover, we considered whether the President's intent in firing Corney was connected to other conduct that could come to light as a result of the FBT ' s Russian-interference investigation. In particular, Michael Cohen was a potential subj ect of investigation because of his pursuit of the Trump Tower Moscow project and involvement in other activities. And facts uncovered in the Russia investigation, which our Office referred to the U.S . Attorney's Office for the Southern District of New York, ultimately led to the conviction of Cohen in the Southern District of New York for campaign-finance offenses related to payments he said he made at the direction of the President. See Volume II , Section II.K.5, infra. The investigation, however, did not establish that when the President fired Corney, he was considering the possibility that the FBT 's investigation would uncover these payments or that the President's intent in firing Corney was othe1wise connected to a concern about these matters coming to light.

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criticizing the Special Counsel ' s investigation. That weekend, the President called McGahn and directed him to have the Special Counsel removed because of asserted conflicts of interest. McGahn did not carry out the instruction for fear of being seen as triggering another Saturday Night Massacre and instead prepared to resign. McGahn ultimately did not quit and the President did not follow up with McGahn on his request to have the Special Counsel removed.

Evidence

I. The Appointment of the Special Counsel and the President' s Reaction On May 17, 2017, Acting Attorney General Rosenstein appointed Robert S. Mueller, IJT as Special Counsel and authorized him to conduct the Russia investigation and matters that arose from the investigation .501 The President learned of the Special Counsel's appointment from Sessions, who was with the President, Hunt, and McGahn conducting interviews for a new FBI Director. 502 Sessions stepped out of the Oval Office to take a call from Rosenstein, who told him about the Special Counsel appointment, and Sessions then returned to inform the President of the news .503 According to notes written by Hunt, when Sessions told the President that a Special Counsel had been appointed, the President slumped back in his chair and said, "Oh my God. This is terrible. This is the end of my Presidency. I'm fucked ." 504 The President became angry and lambasted the Attorney General for his decision to recuse from the investigation, stating, "How could you let this happen, Jeff?"505 The President said the position of Attorney General was his most important appointment and that Sessions had "let [him] down," contrasting him to Eric Holder and Robert Kennedy. 506 Sessions recalled that the President said to him, "you were supposed to protect me," or words to that effect. 507 The President returned to the consequences of the appointment and said, "Everyone tells me if you get one of these independent counsels it ruins your presidency. It takes years and years and T won 't be able to do anything. This is the worst thing that ever happened to me." 508

501

Office of the Deputy Attorney General, Order No. 3915-2017, Appointment ofSpecial Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017). 502

Sessions 1/ 17/ 18 302, at 13; Hunt 2/1/18 302, at 18; McGahn 12/ 14/17 302, at 4; Hunt-000039 (Hunt 5/17/17 Notes). 503

Sessions 1/ 17/1 8 302, at 13; Hunt 2/1/18 302, at 18; McGahn 12/ 14/ 17 302, at 4; Hunt-000039 (Hunt 5/17/17 Notes). 504

Hunt-000039 (Hunt 5/ 17/1 7 Notes).

505

Hunt-000039 (Hunt 5/17/17 Notes); Sessions 1/17/ 18 302, at 13-14.

506

Hunt-000040; see Sessions 1/ 17/18 302, at 14.

507

Sessions 1/17/18 302, at 14.

508

Hunt-000040 (Hunt 5/17/17 Notes); see Sessions 1/17/ 18 302, at 14. Early the next morning, the President tweeted, "This is the single greatest witch hunt of a politician in American history!" @realDonaldTrump 5/ 18/17 (7:52 a.m. ET) Tweet. 78

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The President then told Sessions he should resign as Attorney General. 509 Sessions agreed to submit his resignation and left the Oval Office. 51 0 Hicks saw the President shortly after Sessions departed and described the President as being extremely upset by the Special Counsel ' s appointment. 5 11 Hicks said that she had only seen the President like that one other time, when the Access Hollywood tape came out during the campaign. 512 The next day, May 18, 2017, FBI agents delivered to McGahn a preservation notice that discussed an investigation related to Corney 's termination and directed the White House to preserve all relevant documents.5 13 When he received the letter, McGahn issued a document hold to White House staff and instructed them not to send out any burn bags over the weekend while he sorted things out. 514 Also on May 18, Sessions finalized a resignation letter that stated, "Pursuant to our conversation of yesterday, and at your request, I hereby offer my resignation." 51 5 Sessions, accompanied by Hunt, brought the letter to the White House and handed it to the President.516 The President put the resignation letter in his pocket and asked Sessions several times whether he wanted to continue serving as Attorney General. 517 Sessions ultimately told the President he wanted to stay, but it was up to the President. 518 The President said he wanted Sessions to stay. 519 At the conclusion of the meeting, the President shook Sessions 's hand but did not return the resignation letter.520 When Priebus and Bannon learned that the President was holding onto Sessions's resignation letter, they became concerned that it could be used to influence the Department of Justice. 521 Priebus told Sessions it was not good for the President to have the letter because it 509

Hunt-000041 (Hunt 5/ 17/ 17 Notes); Sessions 1/17/ 18 302, at 14.

5 10

Hunt-000041 (Hunt5/17/ 17Notes);Sessions 1/17/ 18302,at 14.

511

Hicks 12/8/ 17 302, at 21.

512

Hicks 12/8/l 7 302, at 2 l. The Access Hollywood tape was released on October 7, 2016, as discussed in Volume I, Section III.D. l, supra. 51 3

McGahn 12/14/ 17 302, at 9; SCR015_000l75-82 (Undated Draft Memoranda to White House

Staff). 514

McGahn 12/14/ 17 302, at 9; SCROl5_000175-82 (Undated Draft Memoranda to White House Staff). The White House Counsel's Office had previously issued a document hold on Februa1y 27, 20 I 7. SCRO I5_00017 I (2/l 7/l 7 Memorandum from McGahn to Executive Office of the President Staff). 515

Hunt-000047 (Hunt 5/l 8/ 17 Notes); 5/ 18/17 Letter, Sessions to President Trump (resigning as Attorney General). 516

Hunt-000047-49 (Hunt 5/18/ 17 Notes); Sessions 1/17/18 302, at 14.

5 17

Hunt-000047-49 (Hunt 5/18/17 Notes); Sessions 1/ 17/ 18 302, at 14.

5 18

Hunt-000048-49 (Hunt 5/ 18/ 17 Notes); Sessions 1/L 7/ 18 302, at 14.

519

Sessions 1/17/ 18 302, at 14.

520

Hunt-000049 (Hunt 5/18/17 Notes).

521

Hunt-000050-51 (Hunt 5/ 18/ 17 Notes).

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would function as a kind of"shock collar" that the President could use any time he wanted; Priebus said the President had "DOJ by the throat."522 Priebus and Bannon told Sessions they would attempt to get the letter back from the President with a notation that he was not accepting Sessions's resignation. 523 On May 19, 2017, the President left for a trip to the Middle East. 524 Hicks recalled that on the President's flight from Saudi Arabia to Tel Aviv, the President pulled Sessions's resignation letter from his pocket, showed it to a group of senior advisors, and asked them what he should do about it. 525 During the trip, Priebus asked about the resignation letter so he could return it to Sessions, but the President told him that the letter was back at the White House, somewhere in the residence. 526 It was not until May 30, three days after the President returned from the trip, that the 527 President returned the letter to Sessions with a notation saying, "Not accepted." 2. The President Asserts that the Special Counsel has Conflicts of Interest In the days following the Special Counsel ' s appointment, the President repeatedly told advisors, including Priebus, Bannon, and McGahn, that Special Counsel Mueller had conflicts of interest. 528 The President cited as conflicts that Mueller had interviewed for the FBI Director position sh01tly before being appointed as Special Counsel, that he had worked for a law firm that represented people affiliated with the President, and that Mueller had disputed certain fees relating to his membership in a Trump golf course in Northern Virginia. 529 The President's advisors pushed

522

Hunt-000050 (Hunt 5/ 18/ 17 Notes); Priebus 10/ 13/17 302, at 21; Hunt 2/1/18 302, at 21.

523

Hunt-000051 (Hunt 5/ 18/ 17 Notes).

524

SCR026_000110 (President's Daily Diary, 5/19/17).

525

Hicks 12/8/17 302, at 22.

526

Priebus 10/13/17 302, at 21. Hunt's notes state that when Priebus returned from the trip, Priebus told Hunt that the President was supposed to have given him the letter, but when he asked for it, the President "slapped the desk" and said he had forgotten it back at the hotel. Hunt-000052 (Hunt Notes, undated). 527 Hunt-000052-53 (Hunt 5/30/17 Notes); 5/18/17 Letter, Sessions to President Trump (resignation letter). Robert Porter, who was the White House Staff Secretary at the time, said that in the days after the President returned from the Middle East trip, the President took Sessions's letter out of a drawer in the Oval Office and showed it to Porter. Porter 4/ 13/18 302, at 8.

528

Priebus I /18/ l 8 302, at 12; Bannon 2/14/18 302, at IO; McGahn 3/8/18 302, at 1; McGahn 12/ 14/17 302, at IO; Bannon 10/26/18 302, at 12. 529 Priebus 1/18/ 18 302, at 12; Bannon 2/14/18 302, at 10. In October 2011, Mueller resigned his family's membership from Trump National Golf Club in Sterling, Virginia, in a letter that noted that "we live in the District and find that we are unable to make full use of the Club" and that inquired "whether we would be entitled to a refund of a portion of our initial membership fee," which was paid in 1994. I 0/12/ 11 Letter, Muellers to Trump National Golf Club. About two weeks later, the controller of the club responded that the Muellers' resignation would be effective October 31, 2011, and that they would be "placed on a waitlist to be refunded on a first resigned / first refunded basis" in accordance with the club's legal

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530

back on his assertion of conflicts, telling the President they did not count as true conflicts. Bannon recalled telling the President that the purported conflicts were "ridiculous" and that none of them was real or could come close to justifying precluding Mueller from serving as Special Counsei. 531 As for Mueller's interview for FBI Director, Bannon recalled that the White House 532 had invited Mueller to speak to the President to offer a perspective on the institution of the FBT. Bannon said that, although the White House thought about beseeching Mueller to become Director again, he did not come in looking for the job. 533 Bannon also told the President that the law firm position did not amount to a conflict in the legal community.534 And Bannon told the President that the golf course dispute did not rise to the level of a conflict and claiming one was " ridiculous and petty."535 The President did not respond when Bannon pushed back on the stated conflicts of interest. 536 On May 23, 20 I 7, the Department of Justice announced that ethics officials had determined that the Special Counsel 's prior law firm position did not bar his service, generating media reports that Mueller had been cleared to serve. 537 McGahn recalled that around the same time, the President complained about the asserted conflicts and prodded McGahn to reach out to Rosenstein about the issue. 538 McGahn said he responded that he could not make such a call and that the 539 President should instead consult his personal lawyer because it was not a White House issue. Contemporaneous notes of a May 23, 2017 conversation between McGahn and the President reflect that McGahn told the President that he would not call Rosenstein and that he would suggest that the President not make such a call either.540 McGahn advised that the President could discuss the issue with his personal attorney but it would " look like still trying to meddle in [the] investigation" and "knocking out Mueller" would be " [a ]nother fact used to claim obst[ruction] of

documents. I 0/27/ 11 Letter, Muellers to Trump National Golf Club. The Muellers have not had further Âˇ contact with the club. 530

Priebus 4/3/ 18 302, at 3; Bannon 10/26/18 302, at 13 (confirming that he, Priebus, and McGahn pushed back on the asserted conflicts). 531

Bannon 10/26/ 18 302, at 12-13.

532

Bannon 10/26/1 8 3 02, at 12.

533

Bannon I 0/26/18 302, at 12.

534

Bannon l 0/26/18 302, at 12.

535

Bannon 10/26/ 18 302, at 13.

536

Bannon I 0/26/18 302, at 12.

537

Matt Zapotosky & Matea Gold, Justice Department ethics experts clear Mueller to lead Russia probe, Washington Post (May 23, 2017). 538

McGahn 3/8/ 18 302, at 1; McGahn 12/14/ 17 302, at l O; Priebus 1/ 18/18 302, at 12.

539

McGahn 3/8/ 18 302, at 1. McGahn and Donaldson said that after the appointment of the Special Counsel, they considered themselves potential fact witnesses and accordingly told the President that inquiries related to the investigation should be brought to his personal counsel. McGahn 12/ 14/ 17 302, at 7; Donaldson 4/2/ 18 302, at 5. 540

SC_ AD_00361 (Donaldson 5/31/17 Notes).

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just[ice]." 541 McGahn told the President that his "biggest exposure" was not his act of firing 542 Corney but his "other contacts" and "calls," and his "ask re: Flynn." By the time McGahn provided this advice to the President, there had been widespread reporting on the President's request for Corney's loyalty, which the President publicly denied; his request that Corney " let[] Flynn go," which the President also denied; and the President' s statement to the Russian Foreign Minister that the termination of Corney had relieved "great pressure" related to Russia, which the President did not deny. 543 On June 8, 2017, Corney testified before Congress about his interactions with the President before his termination , including the request for loyalty, the request that Corney " let[] Flynn go," and the request that Corney "lift the cloud" over the presidency caused by the ongoing investigation.544 Corney's testimony led to a series of news reports about whether the President had obstructedjustice. 545 On June 9, 2017, the Special Counsel's Office informed the White House Counsel' s Office that investigators intended to interview intelligence community officials who had 546 allegedly been asked by the President to push back against the Russia investigation. On Monday, June 12, 2017, Christopher Ruddy, the chief executive of Newsmax Media 547 and a longtime friend of the President' s, met at the White House with Priebus and Bannon. Ruddy recalled that they told him the President was strongly considering firing the Special Counsel 541

SC AD 00361 (Donaldson 5/31/17 Notes).

542

SC AD 00361 (Donaldson 5/31/17 Notes).

543

See, e.g. , Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Corney Demurred. , New York Times (May 11 , 2017); Michael S. Schmidt, Corney Memorandum Says Trump Asked Him to End Flynn Investigation, New York Times (May 16, 2017); Matt Apuzzo et al., Trump Told Russians That Firing 'Nut Job' Corney Eased Pressure From Investigation, New York Times (May 19, 2017). 544

Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Corney, former Director of the FBI, at 5-6). Corney testified that he deliberately caused his memorandum documenting the February 14, 2017 meeting to be leaked to the New York Times in response to a tweet from the President, sent on May 12, 2017, that stated "James Corney better hope that there are no 'tapes' of our conversations before he starts leaking to the press!," and because he thought sharing the memorandum with a reporter "might prompt the appointment of a special counsel." Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (CQ Cong. Transcripts, at 55) (testimony by James B. Corney, former Director of the FBI). 545

See, e.g., Matt Zapotosky, Corney lays out the case that Trump obstructed justice, Washington Post (June 8, 2017) ("Legal analysts said Corney' s testimony clarified and bolstered the case that the president obstructed justice."). 546

6/9/17 Email, Special Counsel's Office to the White House Counsel's Office. This Office made the notification to give the White House an opportunity to invoke executive privilege in advance of the interviews. On June 12, 2017, the Special Counsel's Office interviewed Admiral Rogers in the presence of agency counsel. Rogers 6/12/17 302, at I. On June 13, the Special Counsel's Office interviewed Ledgett. Ledgett 6/13/ 17 302, at 1. On June 14, the Office interviewed Coats and other personnel from his office. Coats 6/14/17 302, at l; Gistaro 6/14/ 17 302, at I; Culver 6/14/ 17 302, at I. 547

Ruddy 6/6/18 302, at 5. 82

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and that he would do so precipitously, without vetting the decision through Administration officials.548 Ruddy asked Priebus if Ruddy could talk publicly about the discussion they had about the Special Counsel, and Priebus said he could. 549 Priebus told Ruddy he hoped another blow up like the one that followed the termination of Corney did not happen .550 Later that day, Ruddy stated in a televised interview that the President was " considering perhaps terminating the Special Counsel" based on purported conflicts of interest. 55 1 Ruddy later told another news outlet that "Trump is definitely considering" terminating the Special Counsel and "it's not something that's being dismissed."552 Ruddy's comments led to extensive coverage in the media that the President was considering firing the Special Counsel. 553 White House officials were unhappy with that press coverage and Ruddy heard from friends that the President was upset with him. 554 On June 13, 2017, Sanders asked the President for guidance on how to respond to press inquiries about the possible firing of the Special Counsel. 555 The President dictated an answer, which Sanders delivered, saying that "[w]hile the president has every right to" fire the Special Counsel, "he has no intention to do so."556 Also on June 13, 2017, the President's personal counsel contacted the Special Counsel ' s Office and raised concerns about possible conflicts. 557 The President's counsel cited Mueller's previous partnership in his law firm, his interview for the FBI Director position, and an asserted personal relationship he had with Comey. 55 8 That same day, Rosenstein had testified publicly before Congress and said he saw no evidence of good cause to terminate the Special" Counsel , including for conflicts of interest. 559 Two days later, on June 15, 2017, the Special Counsel's 548

Ruddy 6/6/18 302, at 5-6.

549

Ruddy 6/6/18 302, at 6.

550

Ruddy 6/6/18 302, at 6.

551

Trump Confidant Christopher Ruddy says Mueller has "real conflicts" as special counsel, PBS (June l 2, 2017); Michael D. Shear & Maggie Haberman, Friend Says Trump Is Considering Firing Mueller as Special Counsel, New York Times (June 12, 2017). 552 Katherine Faulders & Veronica Stracqualursi, Trump friend Chris Ruddy says Spicer 's 'bizarre ' statement doesn't deny claim Trump seeking Mueller firing, ABC (June 13, 2017). 553

See, e.g. , Michael D . Shear & Maggie Haberman, Friend Says Trump Is Considering Firing Mueller as Special Counsel, New York Times (June 12, 2017). 554

Ruddy 6/6/ 18 302, at 6-7.

555

Sanders 7/3/ 18 302, at 6-7.

556

Glenn Thrush et al., Trump Stews, StaffSteps In, and Mueller Is Safe for Now, New York Times (June l 3, 2017); see Sanders 7/3/18 302, at 6 (Sanders spoke with the President directly before speaking to the press on Air Force One and the answer she gave is the answer the President told her to give). 557

Special Counsel's Office Attorney 6/13/17 Notes.

558

Special Counsel's Office Attorney 6/13/ 17 Notes.

559

Hearing on Fiscal 2018 Justice Department Budget before the Senate Appropriations Subcommittee on Commerce, Justice, and Science, 115th Cong. (June 13, 2017) (CQ Cong. Transcripts, at 14) (testimony by Rod Rosenstein, Deputy Attorney General).

U.S. Department of Justice

Atttm1ey \1/erk Pretlttet // M:a:)Âˇ Cer~ta:il'l: M:a:teria:I Preteetetl UHtler Fetl. R. Criffl. P. 6(e)

Office informed the Acting Attorney General 's office about the areas of concern raised by the President' s counsel and told the President's counsel that their concerns had been communicated to 560 Rosenstein so that the Department of Justice could take any appropriate action. 3. The Press Reports that the President is Being Investigated for Obstruction of Justice and the President Directs the White House C ounse l to Have the Special Counsel Removed On the evening of June 14, 2017, the Washington Post published an article stating that the 561 Special Counsel was investigating whether the President had attempted to obstructjustice. This was the first public report that the President himself was under investigation by the Special Counsel ' s Office, and cable news networks quickly picked up on the report.562 The Post story stated that the Special Counsel was interviewing intelligence community leaders, including Coats and Rogers, about what the President had asked them to do in response to Corney' s March 20, 2017 testimony; that the inquiry into obstruction marked "a major turning point" in the investigation; and that while "Trump had received private assurances from then-FBI Director James B. Corney starting in January that he was not personally under investigation," "[o]fficials say that changed shortly after Corney's firing." 563 That evening, at approximately I 0:31 p.m., the President called McGahn on McGahn' s personal cell phone and they spoke for about 15 minutes.564 McGahn did not have a clear memory of the call but thought they might have discussed the stories reporting that the President was under investigation .565 Beginning early the next day, June 15, 2017, the President issued a series of tweets acknowledging the existence of the obstruction investigation and criticizing it. He wrote: "They made up a phony collusion with the Russ ians story, found zero proof, so now they go for obstruction ofjustice on the phony story . Nice";566 "You are witnessing the single greatest WITCH HUNT in American political history-led by some very bad and conflicted people! ";567 and "Crooked H destroyed phones w/ hammer, ' bleached ' emai ls, & had husband meet w/AG days

560

Special Counsel's Office Attorney 6/15/17 Notes.

56 1

Devlin Barrett et al., Special counsel is investigating Trump for p ossible obstruction ofjustice, officials say, Washington Post (June 14, 2017). 562 CNN, for example, began running a chyron at 6:55 p.m. that stated: "WASH POST: MUELLER INVESTIGATING TRUMP FOR OBSTRUCTION OF JUSTICE." CNN, (June 14, 2017, published online at 7: 15 p.m. ET). 563

Devlin Barrett et al., Special counsel is investigating Trump for possible obstruction ofjustice, officials say, Washington Post (June 14, 2017). 564 SCR026 000183 (President's Daily Diary, 6/ 14/ 17) (reflecting call from the President to McGahn on 6/ 14/17 with start time 10:31 p.m. and end time 10:46 p.m.); Call Records of Don McGahn. 565

McGahn 2/28/19 302, at 1-2. McGahn thought he and the President also probably talked about the investiture ceremony for Supreme Court Justice Neil Gorsuch, which was scheduled for the following day. McGahn 2/28/ 18 302, at 2. 566

@realDonaldTrump 6/15/ 17 (6 :55 a.m. ET) Tweet.

567

@realDonaldTrump 6/ 15/17 (7:57 a.m. ET) Tweet. 84

U.S. Department of Justice Att:ot'fle~Âˇ Work Proattet // May CoHtaiH Material Proteetea UHaer Fee . R. Crim . P. 6(e)

before she was cleared- & they talk about obstruction?" 568 The next day, June 16, 2017, the President wrote additional tweets criticizing the investigation: "After 7 months of investigations & committee hearings about my 'collusion with the Russians,' nobody has been able to show any proof. Sad! ";569 and "Jam being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt."570 On Saturday, June 17, 2017, the President called McGahn and directed him to have the 572 In Special Counsel removed. 571 McGahn was at home and the President was at Camp David . interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel. 573 On the first call, McGahn recalled that the President said something like, "You gotta do this. You gotta call Rod." 574 McGahn said he told the President that he would see what he could do. 575 McGahn was perturbed by the call and did not intend to act on the request. 576 He and other advisors believed the asserted conflicts were "silly" and "not real," and they had previously communicated that view to the President. 577 McGahn also had made clear to the President that the White House Counsel' s Office should not be involved in any effort to press the issue of conflicts.5 78 McGahn was concerned about having any role in asking the Acting Attorney General to fire the Special Counsel because he had grown up in the Reagan era and wanted to be more like Judge 568

@rea!DonaldTrump 6/ 15/ 17 (3 :56 p.m. ET) Tweet.

569

@realDonaldTrump 6/ 16/ 17 (7:53 a.m. ET) Tweet.

570

@realDonaldTrump 6/ 16/17 (9:07 a.m. ET) Tweet.

57 1

McGahn 3/8/ 18 302, at 1-2; McGahn 12/ 14/17 302, at 10.

572

McGahn 3/8/ 18 302, at l, 3; SCR026_000196 (President's Daily Diary, 6/ 17/17) (records showing President departed the White House at 11 :07 a.m. on June 17, 2017, and arrived at Camp David at 11 :37 a.m.) . 573

McGahn 3/8/18 302, at 1-2; McGahn 12/ 14/ 17 302, at 10. Phone records show that the President called McGahn in the afternoon on June 17, 2017, and they spoke for approximately 23 minutes. SCR026_000196 (President' s Daily Diary, 6/ 17/17) (reflecting call from the President to McGahn on 6/17/ 17 with start time 2:23 p.m. and end time 2:46 p.m.); (Call Records of Don McGahn) . Phone records do not show another call between McGahn and the President that day. Although McGahn recalled receiving multiple calls from the President on the same day, in light of the phone records he thought it was possible that the first call instead occurred on June 14, 2017, shortly after the press reported that the President was under investigation for obstruction of justice. McGahn 2/28/ 19 302, at 1-3. While McGahn was not certain of the specific dates of the calls, McGahn was confident that he had at least two phone conversations with the President in which the.President directed him to call the Acting Attorney General to have the Special Counsel removed. McGahn 2/28/19 302, at 1-3. 574

McGahn 3/8/ 18 302, at I.

575

McGahn 3/8/18 302, at I .

576

McGahn 3/8/ 18 302, at 1.

577

McGahn 3/8/ 18 302, at 1-2.

578

McGahn 3/8/18 302, at 1-2.

U.S. Department of Justice AMarfle~Âˇ Wark Praettet // May Caflttlifl Material Prateeteti UHtier Fee. R. Crim . P. 6(e)

Robert Bork and not " Saturday Night Massacre Bork."579 McGahn considered the President's request to be an inflection point and he wanted to hit the brakes. 580 When the President called McGahn a second time to follow up on the order to call the Department of Justice, McGahn recalled that the President was more direct, saying something like, 581 McGahn "Call Rod, tell Rod that Mueller has conflicts and can ' t be the Special Counsel." 582 recalled the President telling him "Mueller has to go" and "Call me back when you do it." McGahn understood the President to be say ing that the Special Counsel had to be removed by Rosenstein. 583 To end the conversation with the President, McGahn left the President with the impression that McGahn would call Rosenstein. 584 McGahn recalled that he had already said no 585 to the President's request and he was worn down, so he just wanted to get off the phone. McGahn recalled feeling trapped because he did not plan to follow the President's directive but did not know what he would say the next time the President called. 586 McGahn decided he had to resign. 587 He called his personal lawyer and then called his chief of staff, Annie Donaldson, to inform her of his decision. 588 He then drove to the office to pack his belongings and submit his resignation letter. 589 Donaldson recalled that McGahn told her the President had called and demanded he contact the Department of Justice and that the Pres ident wanted him to do something that McGahn did not want to do. 590 McGahn told Donaldson that the President had called at least twice and in one of the calls asked " have you done it?" 591 McGahn did not tell Donaldson the specifics of the President' s request because he was consciously trying not to involve her in the

579

McGahn 3/8/ 18 302, at 2.

580

McGahn 3/8/18 302, at 2.

58 1

McGahn 3/8/ 18 302, at 5.

582

McGahn 3/8/ 18 302, at 2, 5; McGahn 2/28/1 9 302, at 3.

583

McGahn 3/8/ 18 302, at 1-2, 5.

584

McGahn 3/8/ 18 302, at 2.

585

McGahn 2/28/ 19 302, at 3; McGahn 3/8/ 18 302, at 2.

586

McGahn 3/8/18 302, at 2.

587

McGahn 3/8/ 18 302, at 2.

588

McGahn 3/8/ 18 302, at 2-3; McGahn 2/28/ 19 302, at 3; Donaldson 4/2/ 18 302, at 4; Call Records of Don McGahn . 589

McGahn 3/8/ 18 302, at 2; Donaldson 4/2/ 18 302, at 4.

590

Donaldson 4/2/18 302, at 4.

59 1

Donaldson 4/2/18 302, at 4.

U.S. Department of Justice

Attorfl:ey Werle Proattet II Mtt)" Cofl:tttifl: Mttterittl Proteetea URaer Fee. R. Crim. P. 6(e)

investigation, but Donaldson inferred that the President' s directive was related to the Russia investigation. 592 Donaldson prepared to resign along with McGahn. 593 That evening, McGahn called both Priebus and Bannon and told them that he intended to McGahn recalled that, after speaking with his attorney and given the nature of the President' s request, he decided not to share details of the President's request with other White House staff. 59 5 Priebus recalled that McGahn said that the President had asked him to "do crazy shit," but he thought McGahn did not tell him the specifics of the President's request because McGahn was trying to protect Priebus from what he did not need to know.596 Priebus and Bannon both urged McGahn not to quit, and McGahn ultimately returned to work that Monday and remained in his position. 597 He had not told the President directly that he planned to resign, and when they next saw each other the President did not ask McGahn whether he had followed through with calling Rosenstein. 598 resign. 594

Around the same time, Chris Christie recalled a telephone call with the President in which 599 the President asked what Christie thought about the President firing the Special Counsel. Christie advised against doing so because there was no substantive basis for the President to fire the Special Counsel, and because the President would lose support from Republicans in Congress if he did so. 600

Analysis In analyzing the President's direction to McGahn to have the Special Counsel removed, the following evidence is relevant to the elements of obstruction of justice: a. Obstructive act. As with the President's firing of Corney, the attempt to remove the Special Counsel would qualify as an obstructive act if it would naturally obstruct the

592

McGahn 2128119 302, at 3-4 ; Donaldson 4/2/18 302, at 4-5. Donaldson said she believed McGahn consciously did not share details with her because he did not want to drag her into the investigation. Donaldson 4/2/ 18 302, at 5; see McGahn 2/28/19 302, at 3,. 593

Donaldson 4/2/ 18 302, at 5.

594

McGahn 12/14/17 302, at 1O; Call Records of Don McGahn; McGahn 2/28/ 19 302, at 3-4; Priebus 4/3/ I 8 302, at 6- 7. 595 McGahn 2/28/19 302, at 4. Priebus and Bannon confirmed that McGahn did not tell them the specific details of the President's request. Priebus 4/3/ 18 302, at 7; Bannon 2/1 4/ 18 302, at 10. 596

Priebus 4/3/ 18 302, at 7.

597

McGahn 3/8/ 18 302, at 3; McGahn 2/28/19 302, at 3-4.

598

McGahn 3/8/18 302, at 3.

599

Christie 2/ 13/ 19 302, at 7. Christie did not recall the precise date of this call, but believed it was after Christopher Wray was announced as the nominee to be the new FBI director, which was on June 7, 2017. Christie 2/ 13/ 19 302, at 7. Telephone records show that the President called Christie twice after that time period, on July 4, 2017, and July 14, 2017. Call Records of Chris Christie. 60

Â°Christie 2/ 13/19 302, at 7. 87

U.S. Department of Justice Aftoffley Work Protlttet // Ma:,Âˇ COf1taiH Material Proteetetl UHeer Fee. R. Criffl. P. 6(e)

investigation and any grand jury proceedings that might flow from the inquiry. Even if the removal of the lead prosecutor would not prevent the investigation from continuing under a new appointee, a factfinder would need to consider whether the act had the potential to delay further action in the investigation, chill the actions of any replacement Special Counsel, or otherwise impede the investigation. A threshold question is whether'the President in fact directed McGahn to have the Special Counsel removed. After news organizations reported that in June 2017 the President had ordered McGahn to have the Special Counsel removed, the President publicly disputed these accounts, and privately told McGahn that he had ,simply wanted McGahn to bring conflicts of interest to the Department of Justice' s attention. See Volume II, Section II.I, infra. Some of the President's specific language that McGahn recalled from the calls is consistent with that explanation. Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed. First, McGahn' s clear recollection was that the President directed him to tell Rosenstein not only that conflicts existed but also that "Mueller has to go." McGahn is a credible witness 60 1 McGahn with no motive to lie or exaggerate given the position he held in the White House. spoke with the President twice and understood the directive the same way both times, making it unlikely that he misheard or misinterpreted the President's request. In response to that request, McGahn decided to quit because he did not want to participate in events that he described as akin to the Saturday Night Massacre. He called his lawyer, drove to the White House, packed up his office, prepared to submit a resignation letter with his chief of staff, told Priebus that the President had asked him to "do crazy shit," and informed Priebus and Bannon that he was leaving. Those acts would be a highly unusual reaction to a request to convey information to the Department of Justice. Second, in the days before the calls to McGahn, the President, through his counsel, had already brought the asserted conflicts to the attention of the Department of Justice. Accordingly, the President had no reason to have McGahn call Rosenstein that weekend to raise conflicts issues that already had been raised. Third, the President's sense ofurgency and repeated requests to McGahn to take immediate action on a weekend-" You gotta do this. You gotta call Rod."-suppot1 McGahn's recollection that the President wanted the Department of Justice to take action to remove the Special Counsel. Had the President instead sought only to have the Department of Justice re-examine asserted conflicts to evaluate whether they posed an ethical bar, it would have been unnecessary to set the process in motion on a Saturday and to make repeated calls to McGalm. Finally, the President had discussed "knocking out Mueller" and raised conflicts of interest in a May 23, 2017 call with McGahn, reflecting that the President connected the conflicts to a plan to remove the Special Counsel. And in the days leading up to June 17, 2017, the President made clear to Priebus and Bannon, who then told Ruddy, that the President was considering terminating 60 1 When this Office first interviewed McGahn about this topic, he was reluctant to share detailed information about what had occurred and only did so after continued questioning. See McGahn 12/ 14/ 17 302 (agent notes).

U.S. Department of Justice AttorHey 'Nork Preattet // May CeHtairt Material Preteetea Urtaer Fee. R. Crim. P. 6(e)

the Special Counsel. Also during this time period, the President reached out to Christie to get his thoughts on firing the Special Counsel. This evidence shows that the President was not just seeking an examination of whether conflicts existed but instead was looking to use asserted conflicts as a way to terminate the Special Counsel. b. Nexus to an official proceeding. To satisfy the proceeding requirement, it would be necessary to establish a nexus between the President's act of seeking to terminate the Special Counsel and a pending or foreseeable grand jury proceeding. Substantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury. On May 23, 2017, McGahn explicitly warned the President that his "biggest exposure" was not his act of firing Corney but his "other contacts" and "calls," and his "ask re: Flynn." By early June, it was widely reported in tbe media that federal prosecutors had issued grand jury subpoenas in the Flynn inquiry and that the Special Counsel had taken over the Flynn investigation. 602 On June 9, 2017, the Special Counsel's Office informed the White House that investigators would be interviewing intelligence agency officials who allegedly had been asked by the President to push back against the Russia investigation. On June 14, 2017, news outlets began reporting that the President was himself being investigated for obstruction of justice. Based on widespread reporting, the President knew that such an investigation could include his request for Corney's loyalty; his request that Corney "let[] Flynn go"; his outreach to Coats and Rogers; and his termination of Corney and statement to the Russian Foreign Minister that the termination had relieved "great pressure" related to Russia. And on June 16, 2017, the day before he directed McGahn to have the Special Counsel removed, the President publicly acknowledged that his conduct was under investigation by a federal prosecutor, tweeting, "I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!" c. Intent. Substantial evidence indicates that the President's attempts to remove the Special Counsel were linked to the Special Counsel's oversight of investigations that involved the President's conduct- and, most immediately, to reports that the President was being investigated for potential obstruction of justice. Before the President terminated Corney, the President considered it critically important that he was not under investigation and that the public not erroneously think he was being investigated. As described in Volume II, Section 11.D, supra, advisors perceived the President, while he was drafting the Corney termination letter, to be concerned more than anything else about getting out that he was not personally under investigation. When the President learned of the appointment of the Special Counsel on May 17, 2017, he expressed further concern about the investigation, saying "[t]his is the end of my Presidency." The President also faulted Sessions for recusing, saying "you were supposed to protect me." On June 14, 2017, when the Washington Post reported that the Special Counsel was investigating the President for obstruction of justice, the President was facing what he had wanted 602

See, e.g. , Evan Perez et al., CNN exclusiveÂˇ: Grand jury subpoenas issued in FBI's Russia investigation, CNN (May 9, 2017); Matt Ford, Why Mueller Is Taking Over the Michael Flynn Grand Jury, The Atlantic (June 2, 2017).

U.S. Department of Justice AEterHe)" 'Nerlc Predttet // May CeHtaiH Ma-terial Preteeted URder Fed. R. Criffl. P. 6(e)

to avoid: a criminal investigation into his own conduct that was the subject of widespread media attention. The evidence indicates that news of the obstruction investigation prompted the President to call McGahn and seek to have the Special Counsel removed. By mid-June, the Department of Justice had already cleared the Special Counsel's service and the President's advisors had told him that the claimed conflicts of interest were "silly" and did not provide a basis to remove the Special Counsel. On June 13, 2017, the Acting Attorney General testified before Congress that no good cause for removing the Special Counsel existed, and the President dictated a press statement to Sanders saying he had no intention of firing the Special Counsel. But the next day, the media reported that the President was under investigation for obstruction of justice and the Special Counsel was interviewing witnesses about events related to possible obstruction- spurring the President to write critical tweets about the Special Counsel's investigation. The President called McGahn at home that night and then called him on Saturday from Camp David. The evidence accordingly indicates that news that an obstruction investigation had been opened is what led the President to cal l McGahn to have the Special Counsel terminated. There also is evidence that the President knew that he should not have made those calls to McGahn. The President made the calls to McGahn after McGahn had specifically told the President that the White House Counsel's Office-and McGahn himself-could not be involved in pressing conflicts claims and that the President should consult with his personal counsel if he wished to raise conflicts. Instead ofrelying on his personal counsel to submit the conflicts claims, the President sought to use his official powers to remove the Special Counsel. And after the media reported on the President's actions, he denied that he ever ordered McGahn to have the Special Counsel terminated and made repeated efforts to have McGahn deny the story, as discussed in Volume II, Section II.I, infra. Those denials are contrary to the evidence and suggest the President's awareness that the direction to McGahn could be seen as improper.

The President's Efforts to Curtail the Special Counsel Investigation Overview

Two days after the President directed McGahn to have the Special Counsel removed, the President made another attempt to affect the course of the Russia investigation. On June 19, 2017, the President met one-on-one with Corey Lewandowski in the Oval Office and dictated a message to be delivered to Attorney General Sessions that would have had the effect of limiting the Russia investigation to future election interference only. One month later, the President met again with Lewandowski and followed up on the request to have Sessions limit the scope of the Russia investigation. Lewandowski told the President the message would be delivered soon. Hours later, the President publicly criticized Sessions in an unplanned press interview, raising questions about Sessions's job security. 1. The President Asks Corey Lewandowski to Deliver a Message to Sessions to Curtail the Special Counsel Investigation On June 19, 2017, two days after the President directed McGahn to have the Special Counsel removed, the President met one-on-one in the Oval Office with his former campaign

U.S. Department of Justice

Atat:erHe,Âˇ '.l.'erk Pre<:ittet // Ma:y CeHtB:iH Ma:teria:l Preteete<:i UH<:ier Fe<:i. R. Crim. P. 6(e)

manager Corey Lewandowski. 6 03_ Senior White House advisors described Lewandowski as a "devotee" of the President and said the relationship between the President and Lewandowski was "close." 604 During the June 19 meeting, Lewandowski recalled that, after some small talk, the 605 President brought up Sessions and criticized his recusal from the Russia investigation. The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions. 606 The President then asked Lewandowski to deliver a message to Sessions and said "write this down."607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608 The President directed that Sessions should give a speech publicly announcing: I know that I recused myself from certain things having to do with specific areas. But our POTUS ... is being treated very unfairly. He shouldn' t have a Special Prosecutor/Counsel b/c he hasn't done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn't do anything wrong except he ran the greatest campaign in American history .609 The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference: Now a group of people want to subvert the Constitution of the United States. I am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections. 610

604

Kelly 8/2/ 18 302, at 7; Dearborn 6/20/18 302, at 1 (describing Lewandowski as a "comfort to the President" whose loyalty was appreciated). Kelly said that when he was Chief of Staff and the President had meetings with friends like Lewandowski, Kelly tried not to be there and to push the meetings to the residence to create distance from the West Wing. Kelly 8/2/18 302, at 7. 605

Lewandowski 4/6/18 302, at 2.

606

Lewandowski 4/6/18 302, at 2.

607

Lewandowski 4/6/18 302, at 2.

608

Lewandowski 4/6/ 18 302, at 3.

609

Lewandowski 4/6/18 302, at 2-3; Lewandowski 6/ 19/ 17 Notes, at 1-2.

610

Lewandowski 4/6/ 18 302, at 3; Lewandowski 6/19/17 Notes, at 3. 91

U.S. Department of Justice AttefAe,Âˇ Werk Preettet // Ma,Âˇ CeAtttiR Material Preteetee UAeer Fee. R. Criffi . P. 6(e)

The President said that if Sessions delivered that statement he would be the "most popular guy in the country." 611 Lewandowski told the President he understood what the President wanted Sessions to do. 612 Lewandowski wanted to pass the message to Sessions in person rather than over the phone . He did not want to meet at the Department of Justice because he did not want a public log of his visit and did not want Sessions to have an advantage over him by meeting on what Lewandowski described as Sessions's turf. 6 14 Lewandowski called Sessions and arranged a meeting for the following evening at Lewandowski's office, but Sessions had to cancel due to a last minute conflict. 6 15 Shortly thereafter, Lewandowski left Washington, D .C., without having had an opportunity to meet with Sessions to convey the President's message. 6 16 Lewandowski stored the notes in a safe at his home, which he stated was his standard procedure with sensitive items .617 613

2. The President Follows Up with Lewandowski Following his June meeting with the President, Lewandowski contacted Rick Dearborn, then a senior White House official, and asked if Dearborn could pass a message to Sessions. 6 18 Dearborn agreed without knowing what the message was, and Lewandowski later confirmed that 6 19 Dearborn would meet with Sessions for dinner in late July and could deliver the message then. Lewandowski recalled thinking that the President had asked him to pass the message because the President knew Lewandowski could be trusted, but Lewandowski believed Dearborn would be a better messenger because he had a longstanding relationship with Sessions and because Dearborn was in the government while Lewandowski was not. 620 62 1

On July 19, 2017, the President again met with Lewandowski alone in the Oval Office. In the preceding days, as described in Volume TT, Section 11.G, infra, emails and other information about the June 9, 2016 meeting between several Russians and Donald Trump Jr., Jared Kushner, and Paul Manafort had been publicly disclosed. In the July 19 meeting with Lewandowski, the

6 11

Lewandowski 4/6/ 18 302, at3; Lewandowski 6/ l9/ 17Notes, at 4.

612

Lewandowski 4/6/18 302, at 3.

6 13

Lewandowski 4/6/18 302, at 3-4.

614

Lewandowski 4/6/ 18 302, at 4.

6 15

Lewandowski 4/6/18 302, at 4.

6 16

Lewandowski 4/6/ 18 302, at 4.

617

Lewandowski 4/6/ 18 302, at 4.

6 18

Lewandowski 4/6/ 18 302, at 4; see Dearborn 6/20/ 18 302, at 3.

619

Lewandowski 4/6/ 18 302, at 4-5.

620

Lewandowski 4/6/18 302, at 4, 6.

621

Lewandowski 4/6/18 302, at 5; SCR029b_000002-03 (6/5/ 18 Additional Response to Special Counsel Request for Certain Visitor Log Information).

U .S. Department of Justice Atterttey '.'l erk Prncl:uet // May CeHtaiH Material Preteeted Uttder Fed. R. Crim. P. 6(e)

President raised his previous request and asked if Lewandowski had talked to Sessions. 622 Lewandowski told the President that the message would be delivered soon. 623 Lewandowski recalled that the President told him that if Sessions did not meet with him, Lewandowski should tell Sessions he was fired .624 Immediately following the meeting with the President, Lewandowski saw Dearborn in the anteroom outside the Oval Office and gave him a typewritten version of the message the President had dictated to be delivered to Sessions. 625 Lewandowski told Dearborn that the notes were the message they had discussed, but Dearborn did not recall whether Lewandowski said the message was from the President. 626 The m essage "definitely raised an eyebrow" for Dearborn, and he 627 recalled not wanting to ask where it came from or think further about doing anything with it. Dearborn also said that being asked to serve as a messenger to Sessions made him uncomfortable. 628 He recalled later telling Lewandowski that he had handled the situation, but he did not actually follow through with delivering the message to Sessions, and he did not keep a copy of the typewritten notes Lewandowski had given him .629 3. The President Publicly Criticizes Sessions in a New York Times Interview Within hours of the President's meeting with Lewandowski on July 19, 2017, the President gave an unplanned interview to the New York Times in which he criticized Sessions's decision to recuse from the Russia investigation. 630 The President said that " Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job, and I would have picked somebody else."631 Sessions's recusal, the President said, was "very unfair to the president. How do you take a job and then recuse yourself? Ifhe would have recused himself before the job, I would have said, ' Thanks, Jeff, but I can't, you know, I' m not going to

622

Lewandowski 4/6/ 18 302, at 5.

623

Lewandowski 4/6/ 18 302, at 5.

624

Lewandowski 4/6/18 302, at 6. Priebus vaguely recalled Lewandowski telling him that in approximately May or June 2017 the President had asked Lewandowski to get Sessions's resignation. Priebus recalled that Lewandowski described his reaction as something like, " What can I do? I'm not an employee of the administration. I'm a nobody." Priebus 4/3/ 18 302, at 6. 625

Lewandowski 4/6/ 18 302, at 5. Lewandowski said he asked Hope Hicks to type the notes when he went in to the Oval Office, and he then retrieved the notes from her partway through his meeting with the President. Lewandowski 4/6/1 8 302, at 5. 626

Lewandowski 4/6/ 18 302, at 5; Dearborn 6/20/ 18 302, at 3.

627

Dearborn 6/20/ 18 302, at 3 .

628

Dearborn 6/20/ l 8 302, at 3.

629

Dearborn 6/20/18 302, at 3-4.

630

Peter Baker et al., Excerpts From The Times 's Interview With Trump , New York Times (July

19, 2017). 631

Peter Baker et al., Excerpts From The Times 's Interview With Trump , New York Times (July

19,2017).

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take you .' It' s extremely unfair, and that's a mild word, to the president."63 2 Hicks, who was present for the interview, recalled trying to "throw [herself] between the reporters and [the President]" to stop parts of the interview, but the President "loved the interview." 633 Later that day, Lewandowski met with Hicks and they discussed the President' s New York Times interview. 634 Lewandowski recalled telling Hicks about the President' s request that he meet with Sessions and joking with her about the idea of firin g Sessions as a private citizen if Sessions would not meet with him. 635 As Hicks remembered the conversation, Lewandowski told her the President had recently asked him to meet with Sessions and deliver a message that he needed to do the "right thing" and resign .636 While Hicks and Lewandowski were together, the President called Hicks and told her he was happy with how coverage of his New York Times interview criticizing Sessions was playing out.6 37 4. The President Orders Priebus to Demand Sessions' s Resignation Three days later, on July 21, 2017, the Washington Post reported that U.S. intelligence intercepts showed that Sessions had discussed campaign-related matters with the Russian ambassador, contrary to what Sessions had said publicly.63 8 That evening, Priebus called Hunt to talk about whether Sessions might be fired or might resign.639 Priebus had previously talked to Hunt when the media had reported on tensions between Sessions and the President, and, after speaking to Sessions, Hunt had told Priebus that the President would have to fire Sessions if he wanted to remove Sessions because Sessions was not going to quit. 640 According to Hunt, who took contemporaneous notes of the July 21 call, Hunt to Id Priebus that, as they had previously discussed, Sessions had no intention ofresigning. 641 Hunt asked Priebus what the President would

632

Peter Baker et al., Excerpts From The Times 's Interview With Trump , New York Times (July

19, 2017). 633

Hicks 12/8/17 302, at 23 .

634

Hicks 3/ 13/ 18 302, at 10; Lewandowski 4/6/ 18 302, at 6.

635

Lewandowski 4/6/ 18 302, at 6.

636 Hicks 3/ 13/18 302, at 10. Hicks thought that the President might be able to make a recess appointment of a new Attorney General because the Senate was about to go on recess. Hicks 3/ 13/ 18 302, at 10. Lewandowski recalled that in the afternoon of July 19, 2017, following his meeting with the President, he conducted research on recess appointments but did not share his research with the President. Lewandowski 4/6/18 302, at 7.

637

Lewandowski 4/6/18 302, at 6.

638

Adam Entous et al., Sessions discussed Trump campaign-related matters with Russian ambassador, US. intelligence intercepts show, Washington Post (July 21, 2017) . The underlying events concerning the Sessions-Kislyak contacts are discussed in Volume I, Section IV.A.4.c, supra. 639

Hunt 2/1/18 302, at 23.

640

Hunt 2/ 1/ 18 302, at 23.

641

Hunt 2/1 / 18 302, at 23-24; Hunt 7/21/17 Notes, at I.

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accomplish by firing Sessions, pointing out there was an investigation before and there would be an investigation after.642 Early the following morning, July 22, 2017, the President tweeted, "A new INTELLIGENCE LEAK from the Amazon Washington Post, this time against A.G. Jeff Sessions. These illegal leaks, like Corney' s, must stop!" 643 Approximately one hour later, the President tweeted, " So many people are asking why isn ' t the A.G. or Special Council looking at the many Hillary Clinton or Corney crimes. 33,000 e-mails deleted?" 644 Later that morning, while aboard Marine One on the way to Norfolk, Virginia, the President told Priebus that he had to get Sessions to resign immediately. 645 The President said that the country had lost confidence in Sessions and the negative publicity was not tolerable.646 According to contemporaneous notes taken by Priebus, the President told Priebus to say that he "need[ed] a letter ofresignation on [his] desk immediately" and that Sessions had "no choice" but " must immediately resign." 647 Priebus replied that if they fired Sessions, they would never get a new Attorney General confirmed and that the Department of Justice and Congress would turn their backs on the President, but the President suggested he could make a recess appointment to replace Sessions. 648 Priebus believed that the President's request was a prob lem, so he called McGahn and asked for advice, explaining that he did not want to pull the trigger on something that was " all wrong." 649 Although the President tied his desire for Sessions to resign to Sessions' s negative press and poor performance in congressional testimony, Priebus believed that the President' s desire to replace Sessions was driven by the President's hatred of Sessions' s recusal from the Russia investigation.650 McGahn told Priebus not to follow the President' s order and said they should consult their personal counsel, with whom they had attorney-client privilege. 651 McGahn

642

Hunt 2/1 / 18 302, at 23-24; Hunt 7/21/ 17 Notes, at 1-2.

643

@rea!DonaldTrump 7/22/17 (6:33 a.m. ET) Tweet.

644

@rea!DonaldTr~mp 7/22/17 (7:44 a.m. ET) Tweet. Three minutes later, the President tweeted, "What about all of the Clinton ties to Russia, including Podesta Company, Uranium deal, Russian Reset, big dollar speeches etc." @realDonaldTrump 7/22/17 (7:47 a.m. ET) Tweet. 645

Priebus 1/18/ 18 302, at 13- 14.

646

Priebus 1/ 18/ 18 302, at 14; Priebus 4/3/18 302, at 4-5; see RP _000073 (Priebus 7/22/17 Notes).

647

RP_ 000073 (Priebus 7/22/17 Notes).

648

Priebus 4/3/18 302, at 5.

649

Priebus I / 18/18 302, at 14; Priebus 4/3/ 18 302, at 4-5.

650

Priebus 4/3/ 18 302, at 5.

65 1

RP_000074 (Priebus 7/22/17 Notes); McGahn 12/ 14/ 17 302, at 11 ; Priebus I / 18/ 18 302, at 14. Priebus followed McGahn's advice and called his personal attorney to discuss the President's request because he thought it was the type of thing about which one would need to consult an attorney. Priebus 1/ 18/ 18 302, at 14.

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and Priebus discussed the possibility that they would both have to resign rather than carry out the President's order to fire Sessions.652 That afternoon, the President followed up with Priebus about demanding Sessions 's resignation, using words to the effect of, "Did you get it? Are you working on it?"653 Priebus said that he believed that his job depended on whether he followed the order to remove Sessions, although the President did not directly say so. 654 Even though Priebus did not intend to carry out the President's directive, he told the President he would get Sessions to resign. 655 Later in the day, Priebus called the President and explained that it would be a calamity if Sessions resigned because Priebus expected that Rosenstein and Associate Attorney General Rachel Brand would also resign and the President would be unable to get anyone else confirmed. 656 The President agreed to hold off on demanding Sessions 's resignation until after the Sunday shows the next day, to prevent the shows from focusing on the firing. 657 By the end of that weekend, Priebus recalled that the President relented and agreed not to ask Sessions to resign. 658 Over the next several days, the President tweeted about Sessions. On the morning of Monday, July 24, 2017, the President criticized Sessions for neglecting to investigate Clinton and called him " beleaguered." 659 On July 25, the President tweeted, "Attorney General Jeff Sessions has taken a VERY weak position on Hillary Clinton crimes (where are Emails & DNC server) & Intel leakers! "660 The following day, July 26, the President tweeted, "Why didn ' t A.G. Sessions replace Acting FBI Director Andrew McCabe, a Corney friend who was in charge of Clinton investigation."661 According to Hunt, in light of the President' s frequent public attacks, Sessions prepared another resignation letter and for the rest of the year carried it with him in his pocket every time he went to the White House.662

652

McGahn 12/14/ 17 302, at 11; RP_000074 (Priebus 7/22/ 17 Notes) ("discuss resigning

together"). 653

Priebus 1/ 18/18 302, at 14; Priebus 4/3/ 18 302, at 4.

654

Priebus 4/3/ 18 302, at 4.

655

Priebus 1/18/18 302, at 15.

656

Priebus 1/ 18/18 302, at 15.

657

Priebus 1/ 18/ 18 302, at 15.

658

Priebus 1/18/18 302, at 15.

659

@realDonaldTrump 7/24/17 (8:49 a.m. ET) Tweet ("So why aren' t the Committees and investigators, and of course our beleaguered A.G., looking into Crooked Hillarys crimes & Russia relations?"). 660

@realDonaldTrump 7/25/ 17 (6: 12 a.m. ET) Tweet. The President sent another tweet shortly before this one asking "where is the investigation A.G." @real DonaldTrump 7/25/ 17 (6:03 a.m. ET) Tweet. 66 1

@rea1DonaldTrump 7/26/17 (9:48 a.m. ET) Tweet.

662

Hunt 2/1 / 18 302, at 24-25.

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Analysis In analyzing the President' s efforts to have Lewandowski deliver a message directing Sessions to publicly announce that the Special Counsel investigation would be confined to future election interference, the following evidence is relevant to the elements of obstruction of justice: a. Obstructive act. The President' s effort to send Sessions a message through Lewandowski would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry. The President sought to have Sessions announce that the President " shouldn't have a Special Prosecutor/Counsel" and that Sessions was going to "meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election , meddling for future elections so that nothing can happen in future elections." The President wanted Sessions to disregard his recusal from the investigation, which had followed from a formal DOJ ethics review, and have Sessions declare that he knew "for a fact" that "there were no Russians involved with the campaign" because he "was there." The President further directed that Sessions should explain that the President should not be subject to an investigation "because he hasn't done anything wrong." Taken together, the President's directives indicate that Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign, with the Special Counsel being permitted to "move forward with investigating election meddling for future elections." b. Nexus to an official proceeding. As described above, by the time of the President's initial one-on-one meeting with Lewandowski on June 19, 2017, the existence of a grand jury investigation supervised by the Special Counsel was ublic knowled e. B the time of the President' s follow-u meetin with Lewandowski,

See Volume II, Section ILG, infra. To satisfy the nexus requirement, it would be necessary to show that limiting the Special Counsel's investigation would have the natural and probable effect of impeding that grand jury proceeding . c. Intent. Substantial evidence indicates that the President's effort to have Sessions limit the scope of the Special Counsel 's investigation to future election interference was intended to prevent further investigative scrutiny of the President's and his campaign's conduct. As previously described, see Volume II, Section II.B, supra, the President knew that the Russia investigation was focused in part on his campaign, and he perceived allegations of Russian interference to cast doubt on the legitimacy of his election. The President further knew that the investigation had broadened to include his own conduct and whether he had obstructed justice. Those investigations would not proceed if the Special Counsel's jurisdiction were limited to future election interference only. The timing and circumstances of the President's actions support the conclusion that he sought that result. The President's initial direction that Sessions should limit the Special Counsel's investigation came just two days after the President had ordered McGahn to ~ave the Special Counsel removed, which itself followed public reports that the President was personally under

U.S. Department of Justice At:t:offl:ey Work Proattet // May CoHtaiH Material Proteetea Uttaer Fea. R. Crim. P. 6(e)

investigation for obstruction of justice. The sequence of those events raises an inference that after seeking to terminate the Special Counsel, the President sought to exclude his and his campaign ' s conduct from the investigation' s scope. The President raised the matter with Lewandowski again on July 19, 2017, just days after emails and information about the June 9, 2016 meeting between Russians and senior campaign officials had been publicly disclosed, generating substantial media coverage and investigative interest. The manner in which the President acted provides additional evidence of his intent. Rather than rely on official channels, the President met with Lewandowski alone in the Oval Office. The President selected a loyal "devotee" outside the White House to deliver the message, supporting an inference that he was working outside White House channels, including McGahn, who had previously resisted contacting the Department of Justice about the Special Counsel. The President also did not contact the Acting Attorney General, who had just testified publicly that there was no cause to remove the Special Counsel. Instead, the President tried to use Sessions to restrict and redirect the Special Counsel 's investigation when Sessions was recused and could not properly take any action on it. The July 19, 2017 events provide further evidence of the President' s intent. The President followed up with Lewandowski in a separate one-on-one meeting one month after he first dictated the message for Sessions, demonstrating he still sought to pursue the request. And just hours after Lewandowski assured the President that the message would soon be delivered to Sessions, the President gave an unplanned interview to the New York Times in which he publicly attacked Sessions and raised questions about his job security. Four days later, on July 22, 2017, the President directed Priebus to obtain Sessions's resignation. That evidence could raise an inference that the President wanted Sessions to realize that his job might be on the line as he evaluated whether to comply with the President's direction that Sessions publicly announce that, notwithstanding his recusal, he was going to confine the Special Counsel's investigation to future election interference.

The President's Efforts to Prevent Disclosure of Emails About the June 9, 2016 Meeting Behveen Russians and Senior Campaign Officials Overview

By June 2017, the President became aware of emails setting up the June 9, 2016 meeting between senior campaign officials and Russians who offered derogatory information on Hillary Clinton as "part of Russia and its government's support for Mr. Trump." On multiple occasions in late June and early July 2017, the President directed aides not to publicly disclose the emails, and he then dictated a statement about the meeting to be issued by Donald Trump Jr. describing the meeting as about adoption.

Evidence I. The President Learns About the Existence of Emails Concerning the June 9, 2016 Trump Tower Meeting Tn mid-June 2017- the same week that the President first asked Lewandowski to pass a message to Sessions-senior Administration officials became aware of emails exchanged during

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the campaign arranging a meeting between Donald Trump Jr., Paul Manafort, Jared Kushner, and a Russian attorney.663 As described in Volume I, Section IV.A.5, supra, the emails stated that the "Crown [P]rosecutor of Russia" had offered "to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia" as part of "Russia and its government's support for Mr. Trump."664 Trump Jr. responded, "[I]f it's what you say I love it," 665 and he, Kushner, and Manafort met with the Russian attorney and several other Russian individuals at Trump Tower on June 9, 2016.666 At the meeting, the Russian attorney claimed that funds derived from illegal activities in Russia were provided to Hillary Clinton and other Democrats, and the Russian attorney then spoke about the Magnitsky Act, a 2012 U.S. statute that imposed financial and travel sanctions on Russian officials and that had resulted in a retaliatory ban in Russia on U.S. adoptions of Russian children. 667 According to written answers submitted by the President in response to questions from this Office, the President had no recollection of learning of the meeting or the emails setting it up at the time the meeting occurred or at any other time before the election.668 The Trump Campaign had previously received a document request from SSCI that called for the production of various information, including, "[a] list and a description of all meetings" between any "individual affiliated with the Trump campaign" and "any individual formally or informally affiliated with the Russian government or Russian business interests which took place between June 16, 2015, and 12 pm on January 20, 2017," and associated records. 669 Trump Organization attorneys became aware of the June 9 meeting no later than the first week of June 2017, when they began interviewing the meeting participants, and the Trump Organization 670 attorneys provided the emails setting up the meeting to the President's personal counsel. Mark Corallo, who had been hired as a spokesman for the President's personal legal team, recalled that he learned about the June 9 meeting around June 21 or 22, 2017.671 Priebus recalled learning about the June 9 meeting from Fox News host Sean Hannity in late June 2017 .672 Priebus notified one

663

Hicks 3/13/18 302, at l; Raffel 2/8/18 302, at 2.

664

RG000061 (6/3/16 Email, Goldstone to Trump Jr.); @DonaldJTrumpJR 7/11/17 (11:01 a.m.

ET) Tweet. 665

RG000061 (6/3/16 Email, Trump Jr. to Goldstone); @DonaldJTrumpJR 7/11/17 (11 :01 a.m.

ET) Tweet. 666

Samochornov 7/ 12/17 302, at 4.

667

See Volume I, Section TV.A.5, supra (describing meeting in detail).

668

Written Responses of Donald J. Trump (Nov. 20, 2018), at 8 (Response to Question I, Parts (a) through (c)). The President declined to answer questions about his knowledge of the June 9 meeting or other events after the election. 669

DJTFP_SCO_PDF_00000001-02 (5/17/17 Letter, SSCT to Donald J. Trump for President, Inc.).

670

Goldstone 2/8/18 302, at 12; 6/2/ 17 and 6/5/17 Emails, Goldstone & Garten; Raffel 2/8/18 302, at 3; Hicks 3/13/18 302, at 2. 671

Corallo 2/15/18 302, at 3.

672

Priebus 4/3/18 302, at 7. 99

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of the President' s personal attorneys, who told Priebus he was already working on it. 673 By late June, several advisors recalled receiving media inquiries that could relate to the June 9 meeting.674 2. The President Directs Communications Staff Not to Publicly Disclose Information About the June 9 Meeting Communications advisors Hope Hicks and Josh Raffel recalled discussing with Jared Kushner and Tvanka Trump that the emails were damaging and would inevitably be leaked.675 Hicks and Raffel advised that the best strategy was to proactively release the emails to the press. 676 On or about June 22, 2017, Hicks attended a meeting in the White House residence with the President, Kushner, and Ivanka Trump.677 According to Hicks, Kushner said that he wanted to fill the President in on something that had been discovered in the documents he was to provide to the congressional committees involving a meeting with him, Manafort, and Trump Jr. 678 Kushner brought a folder of documents to the meeting and tried to show them to the President, but the President stopped Kushner and said he did not want to know about it, shutting the conversation down. 6 79 On June 28, 2017, Hicks viewed the emails at Kushner' s attorney 's office. 680 She recalled being shocked by the emails because they looked " really bad."681 The next day, Hicks spoke privately with the President to mention her concern about the emails, which she understood were soon going to be shared with Congress. 682 The President seemed upset because too many people knew about the emails and he told Hicks that just one lawyer should deal with the matter.683 The President indicated that he did not think the emails would leak, but said they would leak if everyone had access to them.684

673

Priebus 4/3/18 302, at 7.

674

Corallo 2/15/18 302, at 3; Hicks 12/7/17 302, at 8; Raffel 2/8/ 18 302, at 3.

675

Raffel 2/8/ 18 302, at 2-3; Hicks 3/ 13/18 302, at 2.

676

Raffel 2/8/18 302, at 2-3, 5; Hicks 3/13/ 18 302, at 2; Hicks 12/7/17 302, at 8.

677

Hicks 12/7/ 17 302, at 6-7; Hicks 3/ 13/18 302, at I.

678

Hicks 12/7/17 302, at 7; Hicks 3/13/18 302, at 1.

679

Hicks 12/7/ 17 302, at 7; Hicks 3/ 13/18 302, at I. Counsel for Ivanka Trump provided an attorney proffer that is consistent with Hicks's account and with the other events involving Ivanka Trump set forth in this section of the report. Kushner said that he did not recall talking to the President at this time about the June 9 meeting or the underlying emails. Kushner 4/ 11/18 302, at 30. 680

Hicks 3/ 13/ 18 302, at 1-2.

681

Hicks 3/13/ 18 302, at 2.

682

Hicks 12/7/ 17 302, at 8.

683

Hicks 3/ 13/18 302, at 2-3 ; Hicks 12/7/17 302, at 8.

684

Hicks 12/7/17 302, at 8. 100

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Later that day, Hicks, Kushner, and Ivanka Trump went together to talk to the President. 685 Hicks recalled that Kushner told the President the June 9 meeting was not a big deal and was about Russian adoption, but that emails existed setting up the meeting. 686 Hicks said she wanted to get in front of the story and have Trump Jr. release the emails as part of an interview with "softball questions." 687 The President said he did not want to know about it and they should not go to the press. 688 Hicks warned the President that the emails were "really bad" and the story would be "massive" when it broke, but the Pres ident was insistent that he did not want to talk about it and said he did not want details.689 Hicks recalled that the President asked Kushner when his document production was due. 6 9 Kushner responded that it would be a couple of weeks and the President said, "then leave it alone ."691 Hicks also recalled that the President said Kushner's attorney should give the emails to whomever he needed to give them to, but the President did not think they would be leaked to the press. 692 Raffel later heard from Hicks that the President had directed the group not to be proactive in disclosing the ema ils because the President believed they would not leak.693

Â°

3. The President Directs Trump Jr. ' s Response to Press Inquiries About the June 9 Meeting The following week, the President departed on an overseas trip for the G20 summit in 694 Hamburg, Germany, accompanied by H icks, Raffel, Kushner, and Tvanka Trump, among others. On July 7, 2017, while the President was overseas, Hicks and Raffel learned that the New York Times was working on a story about the June 9 meeting. 695 The next day, Hicks told the President about the story and he directed her not to comment. 696 Hicks thought the President's reaction was odd because he usually considered not responding to the press to be the ultimate sin. 697 Later that day, Hicks and the President again spoke about the story.6 98 Hicks recalled that the President asked

685

Hicks 12/7/ 17 302, at 8; Hicks 3/ 13/18 302, at 2.

686

Hicks 3/1 3/ 18 302, at 2; Hicks 12/7/ 17 302, at 9.

687

Hicks 3/13/ 18 302, at 2-3.

688

Hicks 3/ 13/ 18 302, at 2-3 ; Hicks 12/7/ 17 302, at 9.

689

Hicks 3/13/18 302, at 3; Hicks 12/7/ 17 302, at 9.

690

Hicks 3/ 13/18 302, at 3.

691

Hicks 3/ 13/ 18 302, at 3.

692

Hicks 12/7/ 17 302, at 9.

693

Raffel 2/8/ 18 302, at 5.

694

Raffel 2/8/ 18 302, at 6.

695

Raffel 2/8/ 18 302, at 6-7; Hicks 3/1 3/18 302, at 3.

696

Hicks 12/7/17 302, at 10; Hicks 3/ 13/18 302, at 3.

697

Hicks 12/7/ 17302, at 10.

698

Hicks 3/13/ 18 302, at 3.

101

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her what the meeting had been about, and she said that she had been told the meeting was about Russian adoption. 699 The President responded, "then just say that."700 On the flight home from the G20 on July 8, 2017, Hicks obtained a draft statement about the meeting to be released by Trump Jr. and brought it to the President.70 1 The draft statement began with a reference to the information that was offered by the Russians in setting up the meeting: "I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe 702 pageant with an individual who I was told might have information helpful to the campaign." Hicks again wanted to disclose the entire story, but the President directed that the statement not be issued because it said too much.703 The President told Hicks to say only that Trump Jr. took a brief meeting and it was about Russian adoption.704 After speaking with the President, Hicks texted Trump Jr. a revised statement on the June 9 meeting that read: It was a short meeting. I asked Jared and Paul to stop by. We discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. 7 05 Hicks's text concluded, "Are you ok with this? Attributed to you."706 Trump Jr. responded by text message that he wanted to add the word "primarily" before " discussed" so that the statement would read, "We primarily discussed a program about the adoption of Russian children."707 Trump Jr. texted that he wanted the change because "[t]hey started with some Hillary thing which was bs and some other nonsense which we shot down fast." 708 Hicks texted back, "I think that's right too but boss man worried it invites a lot of questions[.] [U]ltimately [d]efer to you and [your attorney] on that word Be I know it' s important and I think the mention of a campaign issue adds something to it in case we have to go further. " 709 Trump Jr. responded, "If I don't have it in there it appears as though I'm lying later when they inevitably leak something." 710 Trump Jr.' s statement-adding

699

Hicks 3/13/18 302, at 3; Hicks 12/7/ 17 302, at 10.

700

Hicks 3/13/18 302, at 3; see Hicks 12/7/ 17 302, at 10.

70 1

Hicks 3/ 13/ 18 302, at 4.

702

Hicks 7/8/17 Notes.

703

Hicks 3/ 13/18 302, at 4-5 ; Hicks 12/7/17 302, at 11.

704

Hicks 12/7/ 17 302, at 11.

705

SCROl la_000004 (7/8/17 Text Message, Hicks to Trump Jr.).

706

SCRO 11 a_ 000004 (7/8/17 Text Message, Hicks to Trump Jr.).

707

SCROl la_000005 (7/8/ 17 Text Message, Trump Jr. to Hicks).

708

SCR01 la_000005 (7/8/ 17 Text Message, Trump Jr. to Hicks).

709

SCRO 11 a_ 000005 (7/8/17 Text Message, Hicks to Trump Jr.).

710

SCRO 11 a_000006 (7/8/ 17 Text Message, Trump Jr. to Hicks).

102

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the word "primarily" and making other minor additions- was then provided to the New York Times. 711 The full statement provided to the Times stated: It was a short introductory meeting. I asked Jared and Paul to stop by. We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at the time and there was no follow up. I was asked to attend the meeting by an acquaintance, but was not told the name of the person I would be meeting with beforehand.712

The statement did not mention the offer of derogatory information about Clinton or any discussion of the Magnitsky Act or U.S. sanctions, which were the principal subjects of the meeting, as described in Volume I, Section IV.A.5, supra. A short while later, while still on Air Force One, Hicks learned that Priebus knew about the emails, which further convinced her that additional information about the June 9 meeting would leak and the White House should be proactive and get in front of the story. 713 Hicks recalled again going to the President to urge him that they should be fully transparent about the June 9 meeting, but he again said no, telling Hicks, "You've given a statement. We're done."714 Later on the flight home, Hicks went to the President's cabin, where the President was on the phone with one of his personal attomeys. 715 At one point the President handed the phone to Hicks, and the attorney told Hicks that he had been working with Circa News on a separate story, and that she should not talk to the New York Times.716 4. The Media Reports on the June 9, 2016 Meeting Before the President's flight home from the G20 landed, the New York Times published its story about the June 9, 2016 meeting.717 In addition to the statement from Trump Jr., the Times story also quoted a statement from Corallo on behalf of the President's legal team suggesting that the meeting might have been a setup by individuals working with the firm that produced the Steele reporting. 718 Corallo also worked with Circa News on a story published an hour later that 711

Hicks 3/13/18 302, at 6; see Jo Becker et al., Trump Team Met With Lawyer Linked to Kremlin During Campaign, New York Times (July 8, 2017). 712

See Jo Becker et al., Trump Team Met With Lawyer Linked to Kremlin During Campaign, New York Times (July 8, 2017). 713

Hicks 3/ 13/18 302, at 6; Raffel 2/8/18 302, at 9-10.

714

Hicks 12/7/17 302, at 12; Raffel 2/8/18 302, at 10.

715

Hicks 3/ 13/ 18 302, at 7.

716

Hicks 3/ 13/18 302, at 7.

717

See Jo Becker et al., Trump Team Met With Lawyer Linked to Kremlin During Campaign, New York Times (July 8, 2017); Raffel 2/8/18 302, at 10. 718

See Jo Becker et al., Trump Team Met With Lawyer Linked to Kremlin During Campaign, New York Times (July 8, 2017).

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questioned whether Democratic operatives had arranged the June 9 meeting to create the appearance of improper connections between Russia and Trump family members. 719 Hicks was upset about Corallo's public statement and called him that evening to say the President had not approved the statement.720 The next day, July 9, 2017, Hicks and the President called Corallo together and the President criticized Corallo for the statement he had released.721 Corallo told the President the statement had been authorized and further observed that Trump Jr.' s statement was inaccurate and that a document existed that would contradict it. 722 Corallo said that he purposely used the term "document" to refer to the emails setting up the June 9 meeting because he did not know what the President knew about the emails. 723 Corallo recalled that when he referred to the "document" on the call with the President, Hicks responded that only a few people had access to it and said " it will never get out." 724 Corallo took contemporaneous notes of the call that say: "Also mention existence of doc. Hope says ' only a few people have it. It will never get out. ,,,ns Hicks later told investigators that she had no memory of making that comment and had always believed the emails would eventually be leaked, but she might have been channeling the President on the phone call because it was clear to her throughout her conversations with the President that he did not think the emaiis would leak. 726 On July 11 , 2017, Trump Jr. posted redacted images of the emails setting up the June 9 meeting on Twitter; the New York Times reported that he did so " [a]fter being told that The Times was about to publish the content of the emails."727 Later that day, the media reported that the President had been personally involved in preparing Trump Jr. ' s initial statement to the New York Times that had claimed the meeting "primarily" concerned "a program about the adoption of Russian children." 728 Over the next several days, the President's personal counsel repeatedly and

7 19

See Donald Trump Jr. gathered members of campaign for meeting with Russian lawyer before election, Circa News (July 8, 2017). 720

Hicks 3/ 13/18 302, at 8; Corallo 2/ 15/ 18 302, at 6-7.

72 1

Corallo 2/ 15/ 18 302, at 7.

722

Corallo 2/15/ 18 302, at 7.

723

Corallo 2/ 15/ 18 302, at 7-9.

724

Corallo 2/15/ 18 302, at 8.

725

Corallo 2/ 15/18 302, at 8; Corallo 7/9/17 Notes ("Sunday 9th - Hope calls w/ POTUS on line"). Corallo said he is" 100% confident" that Hicks said "It will never get out" on the call. Corallo 2/ 15/ 18 302, at 9. 726

Hicks 3/ 13/ 18 302, at 9.

727

@DonaldJTrumpJR 7/ 11/17 (11 :0 I a.m. ET) Tweet; Jo Becker et al., Russian Dirt on Clinton? '/ Love It, 'Donald Trump Jr. Said, New York Times (July 11 , 2017). 728

See, e.g., Peter Baker & Maggie Haberman, Rancor at While House as Russia Story Refuses to Let the Page Turn, New York Times (July 11, 2017) (reporting that the President "signed off' on Trump Jr. 's statement).

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729

inaccurately denied that the President played any role in drafting Trump Jr.'s statement. After consulting with the President on the issue, White House Press Secretary Sarah Sanders told the media that the President "certainly didn't dictate" the statement, but that "he weighed in, offered suggestions like any father would do."730 Several months later, the President's personal counsel stated in a private communication to the Special Counsel's Office that "the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr." 731 The President later told the press that it was "irrelevant" whether he dictated the statement and said, "It's a statement to the New York Times ... . That's not a statement to a high tribunal of judges. "732 ecial Counsel's Office Trump Jr. related to the June 9 meeting and those who attended the

On July 19, 2017, the President had his follow-up meeting with Lewandowski and then met with reporters for the New York Times. In addition to criticizing Sessions in his Times interview, the President addressed the June 9, 2016 meeting and said he "didn't know anything about the meeting" at the time. 734 The President added, "As I've said-most other people, you know, when they call up and say, ' By the way, we have information on your opponent,' l think most politicians - I was just with a lot of people, they said . . . , 'Who wouldn't have taken a meeting like that?"'73 5

Analysis In analyzing the President's actions regarding the disclosure of information about the June 9 meeting, the following evidence is relevant to the elements of obstruction of justice: a. Obstructive act. On at least three occasions between June 29, 2017, and July 9, 2017, the President directed Hicks and others not to publicly disclose information about the June

729

See, e.g., David Wright, Trump lawyer: President was aware of "nothing", CNN (July 12, 2017) (quoting the President's personal attorney as saying, "I wasn't involved in the statement drafting at all nor was the President."); see also Good Morning America, ABC (July 12, 2017) ("The President didn't sign off on anything .. . . The President wasn't involved in that."); Meet the Press, NBC (July 16, 2017) ("I do want to be clear-the President was not involved in the drafting of the statement."). 730 Sarah Sanders, White House Daily Briefing, C-SPAN (Aug. 1, 2017); Sanders 7/3/18 302, at 9 (the President told Sanders he "weighed in, as any father would" and knew she intended to tell the press what he Âˇsaid). 731

1/29/18 Letter, President's Personal Counsel to Special Counsel's Office, at 18.

732

Remarks by President Trump in Press Gaggle (June 15, 2018).

733

734

Peter Baker et al., Excerpts From The Times 's Interview With Trump, New York Times (July

19,2017). 735

Peter Baker et al., Excerpts From The Times 's Interview With Trump, New York Times (July

19, 2017). 105

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9, 2016 meeting between senior campaign officials and a Russian attorney. On June 29, Hicks warned the President that the emails setting up the June 9 meeting were "really bad" and the story would be "massive" when it broke, but the President told her and Kushner to "leave it alone." Early on July 8, after Hicks told the President the New York Times was working on a story about the June 9 meeting, the President directed her not to comment, even though Hicks said that the President usually considered not responding to the press to be the ultimate sin. Later that day, the President rejected Trump Jr. 's draft statement that would have acknowledged that the meeting was with "an individual who I was told might have information helpful to the campaign." The President then dictated a statement to Hicks that said the meeting was about Russian adoption (which the President had twice been told was discussed at the meeting). The statement dictated by the President did not mention the offer of derogatory information about Clinton. Each of these efforts by the President involved his communications team and was directed at the press. They would amount to obstructive acts only if the President, by taking these actions, sought to withhold information from or mislead congressional investigators or the Special Counsel. On May 17, 2017, the President's campaign received a document request from SSCI that clearly covered the June 9 meeting and underlying emails, and those documents also plainly would have been relevant to the Special Counsel's investigation. But the evidence does not establish that the President took steps to prevent the emails or other information about the June 9 meeting from being provided to Congress or the Special Counsel. The series of discussions in which the President sought to limit access to the emails and prevent their public release occurred in the context of developing a press strategy. The only evidence .we have of the President discussing the production of documents to Congress or the Special Counsel is the conversation on June 29, 2017, when Hicks recalled the President acknowledging that Kushner's attorney should provide emails related to the June 9 meeting to whomever he needed to give them to. We do not have evidence of what the President discussed with his own lawyers at that time. b. Nexus to an official proceeding. As described above, by the time of the President's attempts to prevent the public release of the emails regarding the June 9 meeting, the existence of a grand jury investigation supervised by the Special Counsel was public knowledge, and the President had been told that the emails were responsive to congressional inquiries. To satisfy the nexus requirement, however, it would be necessary to show that preventing the release of the emails to the public would have the natural and probable effect of impeding the grand jury proceeding or congressional inquiries. As noted above, the evidence does not establish that the President sought to prevent disclosure of the emails in those official proceedings . c. Intent. The evidence establishes the President' s substantial involvement in the communications strategy related to information about his campaign 's connections to Russia and his desire to minimize public disclosures about those connections. The President became aware of the emails no later than June 29, 2017, when he discussed them with Hicks and Kushner, and he could have been aware of them as early as June 2, 2017, when lawyers for the Trump Organization began interviewing witnesses who participated in the June 9 meeting. The President thereafter repeatedly rejected the advice of Hicks and other staffers to publicly release information about the June 9 meeting. The President expressed concern that multiple people had access to the emails and instructed Hicks that only one lawyer should deal with the matter. And the President 106

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dictated a statement to be released by Trump Jr. in response to the first press accounts of the June 9 meeting that said the meeting was about adoption. But as described above, the evidence does not establish that the President intended to prevent the Special Counsel's Office or Congress from obtaining the emails setting up the June 9 meeting or other information about that meeting. The statement recorded by Corallo-that the emails "will never get out"-can be explained as reflecting a belief that the emails would not be made public if the President' s press strategy were followed, even if the emails were provided to Congress and the Special Counsel.

The President's Further Efforts to Have the Attorney General Take Over the Investigation Overview

From summer 2017 through 2018, the President attempted to have Attorney General Sessions reverse his recusal, take control of the Special Counsel's investigation, and order an investigation of Hillary Clinton .

Evidence I. The President Again Seeks to Have Sessions Reverse his Recusal After returning Sessions' s resignation letter at the end of May 2017, but before the President's July 19, 2017 New York Times interview in which he publicly criticized Sessions for recusing from the Russia investigation, the President took additional steps to have Sessions reverse his recusal. In particular, at some point after the May 17, 2017 appointment of the Special Counsel, Sessions recalled, the President called him at home and asked if Sessions would "unrecuse" himself. 736 According to Sessions, the President asked him to reverse his recusal so that Sessions could direct the Department of Justice to investigate and prosecute Hillary Clinton, and the "gist" of the conversation was that the President wanted Sessions to unrecuse from "all of it," including the Special Counsel's Russia investigation. 737 Sessions listened but did not respond, and he did not reverse his recusal or order an investigation of Clinton.738 In early July 2017, the President asked Staff Secretary Rob Porter what he thought of Associate Attorney General Rachel Brand. 739 Porter recalled that the President asked him if Brand was good, tough, and "on the team." 740 The President also asked if Porter thought Brand was interested in being responsible for the Special Counsel 's investigation and whether she would want 736

Sessions I/ 17/18 302, at 15. That was the second time that the President asked Sessions to reverse his recusal from campaign-related investigations. See Volume II, Section 11.C. I, supra (describing President's March 2017 request at Mar-a-Lago for Sessions to unrecuse). 737

Sessions 1/17/18 302, at 15.

738

Sessions 1/ 17/18 302, at 15.

739

Porter 4/13/ 18 302, at 11; Porter 5/8/ 18 302, at 6.

740

Porter 4/13/ 18 302, at 11; Porter 5/8/ 18 302, at 6. 107

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to be Attorney General one day. 74 1 Because Potter knew Brand, the President asked him to sound 742 her out about taking responsibility for the investigation and being Attorney General. Contemporaneous notes taken by Porter show that the President told Porter to "Keep in touch with your friend," in reference to Brand.743 Later, the President asked Porter a few times in passing whether he had spoken to Brand, but Porter did not reach out to her because he was uncomfortable with the task. 744 In asking him to reach out to Brand, Porter understood the President to want to find someone to end the Russia investigation or fire the Special Counsel, although the President never said so explicitly. 745 Porter did not contact Brand because he was sensitive to the implications of that action and did not want to be involved in a chain of events associated with an effort to end the investigation or fire the Special Counsel. 746 McGahn recalled that during the summer of 201 7, he and the President discussed the fact that if Sessions were no longer in his position the Special Counsel would report directly to a nonrecused Attorney General. 747 McGahn told the President that things might not change much under a new Attorney General. 748 McGahn also recalled that in or around July 2017, the President frequently brought up his displeasure with Sessions. 749 Hicks recalled that the President viewed Sessions's recusal from the Russia investigation as an act of disloyalty.750 In addition to criticizing Sessions' s recusal, the President raised other concerns about Sessions and his job performance with McGahn and Hicks. 751

741

Porter 4/13/ 18 302, at 11; Porter 5/8/ 18 302, at 6. Because of Sessions's recusal, if Rosenstein were no longer in his position, Brand would, by default, become the DOJ official in charge of supervising the Special Counsel 's investigatiori, and if both Sessions and Rosenstein were removed, Brand would be next in line to become Acting Attorney General for all DOJ matters. See 28 U.S.C. Â§ 508. 742

Porter 4/13/18 302, at l 1; Porter 5/8/18 302, at 6.

743

SC RRP000020 (P01ter 7/10/17 Notes).

744

Potier 4/13/18 302, at 11-12.

745

Porter 4/13/18 302, at 11-12.

746

Porter 4/13/ 18 302, at 11-12. Brand confirmed that no one ever raised with her the prospect of taking over the Russia investigation or becoming Attorney General. Brand 1/29/19 302, at 2. 747

McGahn 12/14/17 302, at 11.

748

McGahn 12/ 14/ 17 302, at 11.

749

McGahn 12/ 14/ 17 302, at 9.

750

Hicks 3/13/18 302, at 1~-

75 1

McGahn 12/14/17 302, at 9; Hicks 3/13/18 302, at 10. 108

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2. Additional Efforts to Have Sessions Unrecuse or Direct Investigations Covered by his Recusal Later in 2017, the President continued to urge Sessions to reverse his recusal from campaign-related investigations and considered replacing Sessions with an Attorney General who would not be recused. On October 16, 2017, the President met privately with Sessions and said that the Department of Justice was not investigating individuals and events that the President thought the Department should be investigating. 752 According to contemporaneous notes taken by Porter, who was at the meeting, the President mentioned Clinton's emails and said, "Don't have to tell us, just take [a] look."753 Sessions did not offer any assurances or promises to the President that the Department of Justice would comply with that request. 754 Two days later, on October 18, 2017, the President tweeted, " Wow, FBI confirms report that James Corney drafted letter exonerating Crooked Hillary Clinton long before investigation was complete. Many people not interviewed, including Clinton herself. Corney stated under oath that he didn't do this-obviously a fix? Where is Justice Dept?" 755 On October 29, 2017, the President tweeted that there was "ANGER & UNITY" over a " lack of investigation" of Clinton arid "the Corney fix," and concluded: "DO SOMETHING!"756 On December 6, 2017, five days after Flynn pleaded guilty to lying about his contacts with the Russian government, the President asked to speak with Sessions in the Oval Office at the end of a cabinet meeting.757 During that Oval Office meeting, which Porter attended, the President again suggested that Sessions could "unrecuse," which Porter linked to taking back supervision of the Russia investigation and directing an investigation of Hillary Clinton. 758 According to contemporaneous notes taken by Porter, the President said, "Tdon't know if you could un-recuse yourself. You 'd be a hero. Not telling you to do anything. Dershowitz says POTUS can get involved. Can order AG to investigate. l don ' t want to get involved. I'm not going to get involved . I' m not going to do anything or direct you to do anything. I just want to be treated fairly."759 According to Porter' s notes, Sessions responded, "We are taking steps; whole new leadership

752

Porter 5/8/ 18 302, at 10.

753

SC_RRP000024 (Porter 10/ 16/ 17 Notes); see Porter 5/8/18 302, at 10.

754

Porter 5/8/18 302, at 10.

755

@rea!DonaldTrump 10/ 18/17 (6:21 a.m. ET) Tweet; @rea!DonaldTrump 10/18/ 17 (6:27 a.m.

ET) Tweet. 756

@realDonaldTrump 10/29/ 17 (9:53 a.m. ET) Tweet; @rea!DonaldTrump 10/29/ 17 (10:02 a.m . ET) Tweet; @real Donald Trump 10/29/17 ( I 0: 17 a.m . ET) Tweet. 757

Porter 4/ 13/18 302, at 5-6; see SC_RRP000031 (Porter 12/6/ 17 Notes) ("12 :45pm With the President, Gen. Kelly, and Sessions (who I pulled in after the Cabinet meeting)"); SC_ RRP000033 (Porter 12/6/ 17 Notes) ("Post-cabinet meeting - POTUS asked me to get AG Sessions. Asked me to stay . Also COS Kelly."). 758

Porter 5/8/18 302, at 12; Porter 4/ 13/ 18 302, at 5-6.

759

SC_RRP000033 (Porter 12/6/ 17 Notes); see Porter 4/ 13/18 302, at 6; Porter 5/8/ 18 302, at 12.

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team. Professionals; will operate according to the law."760 Sessions also said, "I never saw anything that was improper," which Porter thought was noteworthy because it did not fit with the previous discussion about Clinton.761 Porter understood Sessions to be reassuring the President that he was on the President's team. 762 At the end of December, the President told the New York Times it was "too bad" that Sessions had recused himself from the Russia investigation. 763 When asked whether Holder had been a more loyal Attorney General to President Obama than Sessions was to him, the President said, "I don't want to get into loyalty, but I will tell you that, I will say this: Holder protected President Obama. Totally protected him. When you look at the things that they did, and Holder protected the president. And (have great respect for that, I'll be honest."764 Later in January, the President brought up the idea ofreplacing Sessions and told Porter that he wanted to "clean house" at the Department of Justice. 765 In a meeting in the White House residence that Porter attended on January 27, 2018, Porter recalled that the President talked about the great attorneys he had in the past with successful win records, such as Roy Cohn and Jay Goldberg, and said that one of his biggest failings as President was that he had not surrounded himself with good attorneys, citing Sessions as an example. 766 The President raised Sessions's recusal and brought up and criticized the Special Counsel's investigation.767 Over the next several months, the President continued to criticize Sessions in tweets and media interviews and on several occasions appeared to publicly encourage him to take action in the Russia investigation despite his recusal. 768 On June 5, 2018, for example, the President

760

SC_RRP000033 (Porter 12/6/17 Notes); see Porter 4/13/ 18 302, at 6.

761

SC_RRP000033 (Porter 12/6/ 17 Notes); Porter 4/ 13/18 302, at 6.

762

Porter 4/13/ 18 302, at 6-7.

763

Michael S. Schmidt & Michael D. Shear, Trump Says Russia Inquiry Makes U.S. "Look Very Bad", New York Times (Dec. 28, 2017). 764

Michael S. Schmidt & Michael D. Shear, Trump Says Russia Inquiry Makes U.S. "Look Very Bad", New York Times (Dec. 28, 2017). 765

Porter 4/ 13/18 302, at 14.

766

Porter 5/8/18 302, at 15. Contemporaneous notes Porter took of the conversation state, "Roy Cohn (14-0) / Jay Goldberg (12-0)." SC_RRP000047 (Potier 1/27/18 Notes). 767

Porter 5/8/18 302, at 15-16.

768

See, e.g. , @rea!DonaldTrump 2/28/18 (9:34 a.m. ET) Tweet (" Why is A.G. Jeff Sessions asking the Inspector General to investigate potentially massive FISA abuse. Will take forever, has no prosecutorial power and already late with reports on Corney etc. Isn' t the LG. an Obama guy? Why not use Justice Department lawyers? DISGRACEFUL! "); @realDonaldTrump 4/7/ 18 (4:52 p.m. ET) Tweet ("Lawmakers of the House Judiciary Committee are angrily accusing the Department of Justice of missing the Thursday Deadline for turning over UNREDACTED Documents relating to FISA abuse, FBI, Corney, Lynch, McCabe, Clinton Emails and much more. Slow walking-what is going on? BAD!"); @realDonaldTrump 4/22/18 (8:22 a.m. ET) Tweet ('"GOP Lawmakers asking Sessions to Investigate Corney and Hillary Clinton.' @FoxNews Good luck with that request!"); @realDonaldTrump 12/ 16/18 (3 :37 p.m. ET) Tweet

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tweeted, "The Russian Witch Hunt Hoax continues, all because Jeff Sessions didn't tell me he was going to recuse himself. .. . I would have quickly picked someone else. So much time and money wasted, so many Jives ruined .. . and Sessions knew better than most that there was No Collusion! " 769 On August 1, 2018, the President tweeted that '"Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now." 770 On August 23, 2018, the President publicly criticized Sessions in a press interview and suggested that prosecutions at the Department of Justice were politically motivated because Paul Manafort had been prosecuted but Democrats had not. 771 The President said, "I put in an Attorney General that never took control of the Justice Department, Jeff Sessions." 772 That day, Sessions issued a press statement that said, "I took control of the Department of Justice the day I was sworn in . ... While I am Attorney General, the actions 773 of the Department of Justice will not be improperly influenced by political considerations." The next day, the President tweeted a response: '"Department of Justice will not be improperly influenced by political considerations.' Jeff, this is GREAT, what everyone wants, so look into all of the corruption on the ' other side' including deleted Emails, Corney lies & leaks, Mueller conflicts, McCabe, Strzok, Page, Ohr, FISA abuse, Christopher Steele & his phony and corrupt Dossier, the Clinton Foundation, illegal surveillance of Trump campaign, Russian collusion by Dems - and so much more. Open up the papers & documents without redaction? Come on Jeff, you can do it, the country is waiting!" 774 On November 7, 2018, the day after the midterm elections, the President replaced Sessions with Sessions's chief of staff as Acting Attorney General. 775

Analysis In analyzing the President's efforts to have Sessions unrecuse himself and regain control of the Russia investigation, the following considerations and evidence are relevant to the elements of obstruction of justice: a. Obstructive act. To determine if the President's effo11s to have the Attorney General unrecuse could qualify as an obstructive act, it would be necessary to assess evidence on whether those actions would naturally impede the Russia investigation. That inquiry would take into account the supervisory role that the Attorney General, if unrecused, would play in the Russia investigation. It also would have to take into account that the Attorney General ' s recusal covered ("Jeff Sessions should be ashamed of himself for allowing this total HOAX to get started in the first place!"). 769

@realDonaldTrump 6/5/ 18 (7:3 I a.m. ET) Tweet.

770

@realDonaldTrump 8/1 / 18 (9:24 a.rn. ET) Tweet.

771

Fox & Friends Interview of President Trump, Fox N ews (Aug. 23, 2018).

772

Fox & Friends Interview of President Trump, Fox News (Aug. 23, 2018).

773

Sessions 8/23/ 18 Press Statement.

774

@ rea1DonaldTrurnp 8/24/ 18 (6:17 a.m. ET) Tweet;@ realDonaldTrump 8/24/18 (6:28 a.m. ET)

775

@realDonaldTrump 11 /7/ 18 (2:44 p.m. ET) Tweet.

Tweet.

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other campaign-related matters. The inquiry would not turn on what Attorney General Sessions would actually do if unrecused, but on whether the efforts to reverse his recusal would naturally have had the effect of impeding the Russia investigation. On multiple occasions in 2017, the President spoke with Sessions about reversing his recusal so that he could take over the Russia investigation and begin an investigation and prosecution of Hillary Clinton. For example, in early summer 2017, Sessions recalled the President asking him to unrecuse, but Sessions did not take it as a directive. When the President raised the issue again in December 2017, the President said, as recorded by Porter, "Not telling you to do anything .. . . I'm not going to get involved. I' m not going to do anything or direct you to do anything . I just want to be treated fairly ." The duration of the President's efforts- which spanned from March 2017 to August 2018-and the fact that the President repeatedly criticized Sessions in public and in private for failing to tell the President that he would have to recuse is relevant to assessing whether the President' s efforts to have Sessions unrecuse could qualify as obstructive acts. b. Nexus to an official proceeding. As described above, by mid-June 2017, the existence of a grand jury investigation supervised by the Special Counsel was public knowledge. In addition, in July 2017, a different grand jury supervised by the Special Counsel was empaneled in the District of Columbia, and the press reported on the existence of this grand jury in early August 2017. 776 Whether the conduct towards the Attorney General would have a foreseeable impact on those proceedings turns on much of the same evidence discussed above with respect to the obstructive-act element. c. Intent. There is evidence that at least one purpose of the President' s conduct toward Sessions was to have Sessions assume control over the Russia investigation and supervise it in a way that would restrict its scope . By the summer of 2017, the President was aware that the Special Counsel was investigating him personally for obstruction of justice. And in the wake of the disclosures of emails about the June 9 meeting between Russians and senior members of the campaign, see Volume II, Section TI.G, supra, it was evident that the investigation into the campaign now included the President' s son , son-in-law, and former campaign manager. The President had previously and unsuccessfully sought to have Sessions publicly announce that the Special Counsel investigation would be confined to future election interference. Yet Sessions remained recused. In December 2017, shortly after Flynn pleaded guilty, the President spoke to Sessions in the Oval Office with only Porter present and told Sessions that he would be a hero if he unrecused. Porter linked that request to the President's desire that Sessions take back supervision of the Russia investigation and direct an investigation of Hillary Clinton. The President said in that meeting that he "just want[ ed] to be treated fairly," which could reflect his perception that it was unfair that he was being investigated while Hillary Clinton was not. But a principal effect of that act would be to restore supervision of the Russia investigation to the Attorney General-a position that the President frequently suggested should be occupied by someone like Eric Holder and Bobby Kennedy, who the President described as protecting their 776

E.g., Del Quentin Wilbur & Byron Tau, Special Counsel Robert Mueller Impanels Washington Grand Jury in Russia Probe, Wall Street Journal (Aug. 3, 2017); Carol D. Leonnig et al., Special Counsel Mueller using grand jury in f ederal court in Washington as part of Russia investigation, Washington Post (Aug. 3, 2017).

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presidents. A reasonable inference from those statements and the President' s actions is that the President believed that an unrecused Attorney General would play a protective role and could shield the President from the ongoing Russia investigation.

The President Orders McGahn to Deny that the President Tried to Fire the Special Counsel Overview

In late January 2018, the media reported that in June 2017 the President had ordered McGahn to have the Special Counsel fired based on purported conflicts of interest but McGahn had refused, saying he would quit instead. After the story broke, the President, through his personal counsel and two aides, sought to have McGahn deny that he had been directed to remove the Special Counsel. Each time he was approached, McGahn responded that he would not refute the press accounts because they were accurate in reporting on the President's effort to have the Special Counsel removed. The President later personally met with McGahn in the Oval Office with only the Chief of Staff present and tried to get McGahn to say that the President never ordered him to fire the Special Counsel. McGahn refused and insisted his memory of the President's direction to remove the Special Counsel was accurate. In that same meeting, the President challenged McGahn for taking notes of his discussions with the President and asked why he had told Special Counsel investigators that he had been directed to have the Special Counsel removed.

Evidence I. The Press Reports that the President Tried to Fire the Special Counsel

On January 25, 2018, the New York Times reported that in June 2017, the President had ordered McGahn to have the Department of Justice fire the Special Counsel.777 According to the article, "[a]mid the first wave of news media reports that Mr. Mueller was examining a possible obstruction case, the president began to argue that Mr. Mueller had three conflicts of interest that disqualified him from overseeing the investigation."778 The article further reported that "[a]fter receiving the president's order to fire Mr. Mueller, the White House counsel .. . refused to ask the Justice Department to dismiss the special counsel , saying he would quit instead."779 The article stated that the president "ultimately backed down after the White House counsel threatened to resign rather than carry out the directive." 780 After the article was published, the President

777

Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit, New York Times (Jan. 25.2018). 778

Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit, New York Times (Jan. 25.2018). 779

Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit, New York Times (Jan. 25.2018). 780

Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit, New York Times (Jan. 25. 2018).

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dismissed the story when asked about it by reporters, saying, "Fake news, folks . Fake news. A typical New York Times fake story."78 1 The next day, the Washington Post reported on the same event but added that McGahn had not told the President directly that he intended to resign rather than carry out the directive to have the Special Counsel terminated .782 In that respect, the Post story clarified the Times story, which could be read to suggest that McGahn had told the President of his intention to quit, causing the President to back down from the order to have the Special Counsel fired. 783 2. The President Seeks to Have McGahn Dispute the Press Reports On January 26, 2018, the President's personal counsel called McGahn 's attorney and said that the President wanted McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest. 784 McGahn's attorney spoke with McGahn about that request and then called the President's personal counsel to relay that McGahn would not make a statement. 785 McGahn's attorney informed the President's personal counsel that the Times story was accurate in reporting that the President wanted the Special Counsel removed.786 Accordingly, McGahn's attorney said, although the article was inaccurate in some other respects, McGahn could not comply with the President's request to dispute the story.787 Hicks recalled relaying to the President that one of his attorneys had spoken to McGahn's attorney about the issue. 788

781 Sophie Tatum & Kara Scannell, Trump denies he called for Mueller's firing, CNN (Jan. 26, 2018); Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit, New York Times (Jan. 25, 2018). 782

The Post article stated, "Despite internal objections, Trump dec ided to assert that Mueller had unacceptable conflicts of interest and moved to remove him from his position. . . . In response, McGahn said he would not remain at the White House if Trump went through with the move .... McGahn did not deliver his resignation threat directly to Trump but was serious about his threat to leave." Rosalind S. Helderman & Josh Dawsey, Trump moved to fire Mueller in June, bringing White House counsel to the brink of leaving, Washington Post (Jan.26,2018). 783

Rosalind S. Helderman & Josh Dawsey, Trump moved to fire Mueller in June, bringing White House counsel to the brink of leaving, Washington Post (Jan. 26, 2018); see McGahn 3/8/17 302, at 3-4 . 784

McGahn 3/8/18 302, at 3 (agent note).

785

McGahn 3/8/18 302, at 3 (agent note).

786

McGahn 3/8/ 18 302, at 3-4 (agent note).

787

McGahn 3/8/18 302, at 4 (agent note).

788

Hicks 3/13/18 302, at 11. Hicks also recalled that the President spoke on the phone that day with Chief of Staff John Kelly and that the President said Kelly told him that McGahn had totally refuted the story and was going to put out a statement. Hicks 3/ 13/ 18 302, at 11. But Kelly said that he did not speak to McGahn when the article came out and did not tell anyone he had done so. Kelly 8/2/18 302, at 1-2.

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Also on January 26, 2017, Hicks recalled that the President asked Sanders to contact McGahn about the story .789 McGahn told Sanders there was no need to respond and indicated that some of the article was accurate. 79 Consistent with that position, McGahn did not correct the Times story.

On February 4, 2018, Priebus appeared on Meet the Press and said he had not heard the President say that he wanted the Special Counsel fired. 791 After Priebus's appearance, the President called Priebus and said he did a great job on Meet the Press. 792 The President also told Priebus that the President had "never said any of those things about" the Special Counsel. 793 The next day, on February 5, 2018, the President complained about the Times article to Porter. 794 The President told Porter that the article was "bullshit" and he had not sought to terminate the Special Counsel. 795 The President said that McGahn leaked to the media to make himselflook good. 796 The President then directed Porter to tell McGahn to create a record to make clear that the President never directed McGahn to fire the Special Counsel. 797 Porter thought the matter should be handled by the White House communications office, but the President said he wanted McGahn to write a letter to the file "for our records" and wanted something beyond a press statement to demonstrate that the reporting was inaccurate.798 The President referred to McGahn as a "lying bastard" and said that he wanted a record from him. 799 Porter recalled the President

789

Hicks 3/13/18 302, at 11. Sanders did not recall whether the President asked her to speak to McGahn or if she did it on her own. Sanders 7/23/18 302, at 2. 790

Sanders 7/23/18 302, at 1-2.

79 1

Meet the Press Interview with Reince Priebus, NBC (Feb. 4, 2018).

792

Priebus 4/3/18 302, at 10.

793

Priebus 4/3/ 18 302, at 10.

794

Porter 4/13/18 302, at 16-17. Porter did not recall the timing of this discussion with the President. Porter 4/13/18 302, at 17. Evidence indicates it was February 5, 2018. On the back of a pocket card dated February 5, 2018, Porter took notes that are consistent with his description of the discussion: "COS: (1) Letter from OM - Never threatened to quit- DJT never told him to fire M." SC_RRP000053 (Porter Undated Notes). Porter said it was possible he took the notes on a day other than February 5. Porter 4/13/ 18 302, at 17. But Porter also said that "COS" referred to matters he wanted to discuss with Chief of Staff Kelly, Porter 4/13/18 302, at 17, and Kelly took notes dated February 5, 2018, that state " POTUS Don McGahn letter - Mueller+ resigning." WHOOOOl 7684 (Kelly 2/5/ 18 Notes). Kelly said he did not recall what the notes meant, but thought the President may have "mused" about having McGahn write a letter. Kelly 8/2/18 302, at 3. McGahn recalled that Porter spoke with him about the President's request about two weeks after the New York Times story was published, which is consistent with the discussion taking place on or about February 5. McGahn 3/8/18 302, at 4. 795

Pmter 4/13/ 18 302, at 17.

796

Porter 4/13/ 18 302, at 17.

797

Porter 4/13/18 302, at 17.

798

Porter 4/13/18 302, at 17; Porter 5/8/ 18 302, at 18.

799

Porter 4/ 13/18 302, at 17; Porter 5/8/18 302, at 18.

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saying something to the effect of, "If he doesn't write a letter, then maybe I'll have to get rid of him."soo 801

Later that day, Porter spoke to McGahn to deliver the President's message. Porter told McGahn that he had to write a letter to dispute that he was ever ordered to terminate the Special 803 Counsel. 802 McGahn shrugged off the request, explaining that the media reports were true. McGahn told Porter that the President had been insistent on firing the Special Counsel and that McGahn had planned to resign rather than carry out the order, although he had not personally told the President he intended to quit. 804 Porter told McGahn that the President suggested that McGahn would be fired if he did not write the letter. 805 McGahn dismissed the threat, saying that the optics would be terrible if the President followed through with firing him on that basis. 806 McGahn said he would not write the letter the President had requested. 807 Porter said that to his knowledge the issue ofMcGahn's letter never came up with the President again, but Porter did recall telling Kelly about his conversation with McGahn.808 The next day, on February 6, 2018, Kelly scheduled time for McGahn to meet with him and the President in the Oval Office to discuss the Times article. 809 The morning of the meeting, the President's personal counsel called ,McGahn 's attorney and said that the President was going to be speaking with McGahn and McGahn could not resign no matter what happened in the meeting. 810 The President began the Oval Office meeting by telling McGahn that the New York Times story did not "look good" and McGahn needed to correct it. 811 McGahn recalled the President said, "I never said to fire Mueller. I never said 'fire.' This story doesn't look good. You need to correct this. You're the White House counsel." 8 12

800

Porter 4/ 13/18 302, at 17.

801

Porter 4/13/ 18 302, at 17; McGahn 3/8/18 302, at 4.

802

Porter 4/ 13/18 302, at 17; McGahn 3/8/ 18 302, at 4.

803

Porter 4/13/18 302, at 17; McGahn 3/8/ 18 302, at 4.

804

Porter 4/13/18 302, at 17; McGahn 3/8/ 18 302, at 4.

805

Potter 4/13/ 18 302, at 17; McGahn 3/8/18 302, at 4.

806

Porter 4/13/ 18 302, at 17-18; McGahn 3/8/18 302, at 4.

807

McGahn 3/8/18 302, at 4.

808

Poiter 4/13/18 302, at 18.

809

McGahn 3/8/ 18 302, at 4; WH000017685 (Kelly 2/6/18 Notes). McGahn recalled that, before the Oval Office meeting, he told Kelly that he was not inclined to fix the article. McGahn 3/8/ 18 302, at 4. 8 10

McGahn 3/8/18 302, at 5 (agent note); 2/26/19 Email, Counsel for Don McGahn to Special Counsel 's Office (confirming February 6, 2018 date of call from the President's personal counsel). 811

McGahn 3/8/ 18 302, at 4; Kelly 8/2/18 302, at 2.

812

McGahn 3/8/ 18 302, at 4; Kelly 8/2/18 302, at 2. 116

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In response, McGahn acknowledged that he had not told the President directly that he planned to resign, but said that the story was otherwise accurate. 81 3 The President asked McGahn, Âˇ "Did I say the word ' fire'?" 814 McGahn responded, "What you said is, ' Call Rod [Rosenstein], tell Rod that Mueller has conflicts and can't be the Special Counsel. "' 815 The President responded, "I never said that." 816 The President said he merely wanted McGahn to raise the conflicts issue with Rosenstein and leave it to him to decide what to do. 817 McGahn told the President he did not understand the conversation that way and instead had heard, "Call Rod. There are conflicts. Mueller has to go." 8 18 The President asked McGahn whether he would "do a correction," and McGahn said no. 81 9 McGahn thought the President was testing his mettle to see how committed 821 McGahn was to what happened. 82 Kelly described the meeting as "a little tense."

Â°

The President also asked McGahn in the meeting why he had told Special Counsel ' s Office 822 investigators that the President had told him to have the Special Counsel removed. McGahn responded that he had to and that his conversations with the President were not protected by attorney-client privilege.823 The President then asked, " What about these notes? Why do you take notes? Lawyers don' t take notes. I never had a lawyer who took notes." 824 McGahn responded that he keeps notes because he is a "real lawyer" and explained that notes create a record and are not a bad thing. 825 The President said, "I've had a lot of great lawyers, like Roy Cohn . He did not take notes." 826 After the Oval Office meeting concluded, Kelly recalled McGahn telling him that McGahn 827 and the President "did have that conversation" about removing the Special Counsel. McGahn recalled that Kelly said that he had pointed out to the President after the Oval Office that McGahn

813

McGahn 3/8/ 18 302, at 4.

814

McGahn 3/8/ 18 302, at 4; Kelly 8/2/ 18 302, at 2.

815

McGahn 3/8/18 302, at 5.

816

McGahn 3/8/18 302, at 5.

81 7

McGahn 3/8/ 18 302, at 5.

8 18

McGahn 3/8/ 18 302, at 5.

81 9

McGahn 3/8/ 18 302, at 5; Kelly 8/2/18 302, at 2.

820

McGahn 3/8/ 18 302, at 5.

821

Kelly 8/2/ 18 302, at 2.

822

McGahn 3/8/ 18 302, at 5.

823

McGahn 3/8/18 302, at 5.

824 McGahn 3/8/ 18 302, at 5. McGahn said the President was referring to Donaldson 's notes, which the President thought ofas McGahn' s notes. McGahn 3/8/18 302, at 5. 825

McGahn 3/8/ 18 302, at 5.

826

McGahn 3/8/ 18 302, at 5.

827

Kelly 8/2/18 302, at 2.

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had not backed down and would not budge. 828 Following the Oval Office meeting, the President' s personal counsel called McGahn's counsel and relayed that the President was '"fine" with McGahn. 829

Analysis In analyzing the President' s efforts to have McGahn deny that he had been ordered to have the Special Counsel removed, the following evidence is relevant to the elements of obstruction of justice: a. Obstructive act. The President' s repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel would qualify as an obstructive act if it had the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness if he testified consistently with his memory, rather than with what the record said. There is some evidence that at the time the New York Times and Washington Post stories were published in late January 2018, the President believed the stories were wrong and that he had never told McGahn to have Rosenstein remove the Special Counsel. The President correctly understood that McGahn had not told the President directly that he planned to resign . In addition, the President told Priebus and Porter that he had not sought to terminate the Special Counsel, and in the Oval Office meeting with McGahn, the President said, "I never said to fire Mueller. I never said 'fire."' That evidence could indicate that the President was not attempting to persuade McGahn to change his story but was instead offering his own-but different-recollection of the substance of his June 2017 conversations with McGahn and McGahn' s reaction to them. Other evidence cuts against that understanding of the President's conduct. As previously described, see Volume TI, Section ILE, supra, substantial evidence supports McGahn's account that the President had directed him to have the Special Counsel removed, including the timing and context of the President' s directive; the manner in which McGahn reacted; and the fact that the President had been told the conflicts were insubstantial, were being considered by the Department of Justice, and should be raised with the President' s personal counsel rather than brought to McGahn. In addition, the President' s subsequent denials that he had told McGahn to have the Special Counsel removed were carefully worded. When first asked about the New York Times story, the President said, " Fake news, folks. Fake news. A typical New York Times fake story." And when the President spoke with McGahn in the Oval Office, he focused on whether he had used the word "fire," saying, "I never said to fire Mueller. I never said ' fire"' and "Did I say the word 'fire'?" The President's assertion in the Oval Office meeting that he had never directed McGahn to have the Special Counsel removed thus runs counter to the evidence. Tn addition, even if the President sincerely disagreed with McGahn's memory of the June 17, 2017 events, the evidence indicates that the President knew by the time of the Oval Office 828

McGahn 3/8/18 302, at 5. Kelly did not recall discussing the Oval Office meeting with the President after the fact. Kelly 8/2/ 18 302, at 2. Handwritten notes taken by Kelly state, "Don[:] Mueller discussion in June. - Bannon Priebus - came out okay." WHOOOO 17685 (Kelly 2/6/18 Notes). 829

McGahn 3/8/18 302, at 5 (agent note). 118

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meeting that McGahn ' s account differed and that McGahn was firm in his views. Shortly after the story broke, the President's counsel told McGahn's counsel that the President wanted McGahn to make a statement denying he had been asked to fire the Special Counsel, but McGahn responded through his counsel that that aspect of the story was accurate and he therefore could not comply with the President' s request. The President then directed Sanders to tell McGahn to correct the story, but McGahn told her he would not do so because the story was accurate in reporting on the President's order. Consistent with that position, McGahn never issued a correction. More than a week later, the President brought up the issue again with Porter, made comments indicating the President thought McGahn had leaked the story, and directed Porter to have McGahn create a record denying that the President had tried to fire the Special Counsel. At that point, the President said he might "have to get rid of' McGahn if McGahn did not comply. McGahn again refused and told Porter, as he had told Sanders and as his counsel had told the President' s counsel, that the President had in fact ordered him to have Rosenstein remove the Special Counsel. That evidence indicates that by the time of the Oval Office meeting the President was aware that McGahn did not think the story was false and did not want to issue a statement or create a written record denying facts that McGahn believed to be true. The President nevertheless persisted and asked McGahn to repudiate facts that McGahn had repeatedly said were accurate. b. Nexus to an official proceeding. By January 2018, the Special Counsel 's use of a grand jury had been further confirmed by the return of several indictments. The President also was aware that the Special Counsel was investigating obstruction-related events because, among other reasons, on January 8, 2018, the Special Counsel's Office provided his counsel with a detailed list of topics for a possible interview with the President. 830 The President knew that McGahn had personal knowledge of many of the events the Special Counsel was investigating and that McGahn had already been interviewed by Special Counsel investigators. And in the Oval Office meeting, the President indicated he knew that McGahn had told the Special Counsel's Office about the President's effort to remove the Special Counsel. The President challenged McGahn for disclosing that information and for taking notes that he viewed as creating unnecessary legal exposure. That evidence indicates the President's awareness that the June 17, 2017 events were relevant to the Special Counsel's investigation and any grand jury investigation that might grow out of it. To establish a nexus, it would be necessary to show that the President's actions would have the natural tendency to affect such a proceeding or that they would hinder, delay, or prevent the communication of information to investigators. Because McGahn had spoken to Special Counsel investigators before January 2018, the President could not have been seeking to influence his prior statements in those interviews. But because McGahn had repeatedly spoken to investigators and the obstruction inquiry was not complete, it was foreseeable that he would be interviewed again on obstruction-related topics. If the President were focused solely on a press strategy in seeking to have McGahn refute the New York Times article, a nexus to a proceeding or to further investigative interviews would not be shown. But the President' s efforts to have McGahn write a letter "for our records" approximately ten days after the stories had come out- well past the typical 830

1/29/ 18 Letter, President's Personal Counsel to Special Counsel's Office, at 1-2 ("In our conversation of January 8, your office identified the following topics as areas you desired to address with the President in order to complete your investigation on the subjects of alleged collusion and obstruction of justice"; listing 16 topics). 119

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time to issue a correction for a news story-indicates the President was not focused solely on a press strategy, but instead likely contemplated the ongoing investigation and any proceedings arising from it. c. Intent. Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn's account in order to deflect or prevent further scrutiny of the President's conduct towards the investigation. Several facts support that conclusion. The President made repeated attempts to get McGahn to change his story. As described above, by the time of the last attempt, the evidence suggests that the President had been told on multiple occasions that McGahn believed the President had ordered him to have the Special Counsel terminated. McGahn interpreted his encounter with the President in the Oval Office as an attempt to test his mettle and see how committed he was to his memory of what had occurred. The President had already laid the groundwork for pressing McGahn to alter his account by telling Porter that it might be necessary to fire McGahn if he did not deny the story, and Porter relayed that statement to McGahn. Additional evidence of the President's intent may be gleaned from the fact that his counsel was sufficiently alarmed by the prospect of the President's meeting with McGahn that he called McGahn' s counsel and said that McGahn could not resign no matter what happened in the Oval Office that day . The President's counsel was well aware of McGahn's resolve not to issue what he believed to be a false account of events despite the President's request. Finally, as noted above, the President brought up the Special Counsel investigation in his Oval Office meeting with McGahn and criticized him for telling this Office about the June 17, 2017 events. The President's statements reflect his understanding-and his displeasure-that those events would be part of an obstruction-of-justice mqmry. J.

The President's Conduct Towards Flynn, Manafort, ~

Overview In addition to the interactions with McGahn described above, the President has taken other actions directed at possible witnesses in the Special Counsel's investigation, including Flynn, as described in the next section, Cohen. When Flynn withdrew from a joint Manafort, defense agreement with the President, the President's personal counsel stated that Flynn 's actions would be viewed as reflecting "hostility" towards the President. During Manafort's prosecution and while the jury was deliberating, the President repeatedly stated that Manafott was bein treated unfair! and made it known that Manafort could receive a ardon.

IUâ&#x20AC;˘W!and

Evidence 1. Conduct Directed at Michael Flynn

As previously noted, see Volume II, Section II.B, supra, the President asked for Flynn's resignation on February 13, 2017. Following Flynn' s resignation, the President made positive public comments about Flynn, describing him as a "wonderful man," "a fine person," and a "very 120

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good person."831 The President also privately asked advisors to pass messages to Flynn conveying that the President still cared about him and encouraging him to stay strong. 832 In late November 2017, Flynn began to cooperate with this Office. On November 22, 2017, Flynn withdrew from a joint defense agreement he had with the President. 833 Flynn's counsel told the President's personal counsel and counsel for the White House that Flynn could no longer have confidential communications with the White House or the President. 834 Later that night, the President's personal counsel left a voicemail for Flynn's counsel that said: I understand your situation, but let me see if I can't state it in starker terms. . . . [T]t wouldn't surprise me if you've gone on to make a deal with ... the government. ... [I]f ... there' s information that implicates the President, then we've got a national security issue, . . . so, you know, . . . we need some kind of heads up . Um, just for the sake of protecting all our interests if we can . ... [R]emember what we' ve always said about the ' President and his feelings toward Flynn and, that still remains .. ..835 On November 23, 2017, Flynn's attorneys returned the call from the President's personal counsel to acknowledge receipt of the voicemail. 836 Flynn's attorneys reiterated that they were no longer in a position to share information under any sort of privilege. 837 According to Flynn's attorneys, the President' s personal counsel was indignant and vocal in his disagreement. 838 The President's personal counsel said that he interpreted what they said to him as a reflection ofFlynn's

83 1

See, e.g., Remarks by President Trump in Press Conference, White House (Feb. 16, 2018) (stating that "Flynn is a fine person" and "I don' t think [Flynn] did anything wrong. If anything, he did something right ... You know, he was just doing his job"); Interview of Donald J Trump , NBC (May 11 , 2017) (stating that Flynn is a "very good person"). 832

See Priebus I / 18/ 17 302, at 9-1 O (the President asked Priebus to contact Flynn the week he was terminated to convey that the President still cared about him and felt bad about what happened to him; Priebus thought the President did not want Flynn to have a problem with him); McFarland 12/22/17 302, at 18 (about a month or two after Flynn was terminated, the President asked McFarland to get in touch with Flynn and tell him that he was a good guy, he should stay strong, and the President felt bad for him); Flynn 1/ 19/18 302, at 9 (recalling the call from Priebus and an additional call from Hicks who said she wanted to relay on behalf of the President that the President hoped Flynn was okay); Christie 2/13/19 302, at 3 (describing a phone conversation between Kushner and Flynn the day after Flynn was fired where Kushner said, "You know the President respects you. The President cares about you. I'll get the President to send out a positive tweet about you later," and the President nodded his assent to Kushner's comment promising a tweet). 833

Counsel for Flynn 3/1/18 302, at 1.

834

Counsel for Flynn 3/ 1/ 18 302, at I.

835

11 /22/17 Voicemail Transcript, President's Personal Counsel to Counsel for Michael Flynn.

836

Counsel for Flynn 3/1 /18 302, at I.

837

Counsel for Flynn 3/1/18 302, at I.

838

Counsel for Flynn 3/1 /18 302, at I.

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hostility towards the President and that he planned to inform his client of that interpretation. 839 Flynn's attorneys understood that statement to be an attempt to make them reconsider their position because the President's personal counsel believed that Flynn would be disturbed to know that such a message would be conveyed to the President.840 On December I, 2017, Flynn pleaded guilty to making false statements pursuant to a cooperation agreement. 84 1 The next day, the President told the press that he was not concerned about what Flynn might tell the Special Counsel. 842 In response to a question about whether the 843 Over President still stood behind Flynn, the President responded, "We' II see what happens." the next several days, the President made public statements expressing sympathy for Flynn and indicating he had not been treated fairly .844 On December 15, 2017, the President responded to a press inquiry about whether he was considering a pardon for Flynn by saying, "I don ' t want to talk about pardons for Michael Flynn yet. We'll see what happens. Let's see. I can say this: When you look at what's gone on w ith the FBI and with the Justice Department, people are very, very angry."s4s 2. Conduct Directed at Paul Manafort

On October 27, 2017, a grand jury in the District of Columbia indicted Manafort and former deputy campaign manager Richard Gates on multiple felony counts, and on February 22, 2018, a grand jury in the Eastern District of Virginia indicted Manafort and Gates on additional felony

839

Counsel for Flynn 3/1 / 18 302, at 2. Because of attorney-client privilege issues, we did not seek to interview the President's personal counsel about the extent to which he discussed his statements to Flynn's attorneys with the President.

Â° Counsel for Flynn 3/1/18 302, at 2.

841

Information, United States v. Michael T. Flynn, l: l 7-cr-232 (D.D.C. Dec. 1, 2017), Doc. 1; Plea Agreement, United States v. Michael T. Flynn, 1: l 7-cr-232 (D.D.C. Dec. 1, 2017), Doc. 3. 842

President Trump Remarks on Tax Reform and Michael Flynn's Guilty Plea, C-SPAN (Dec. 2,

843

President Trump Remarks on Tax Reform and Michael Flynn's Guilty Plea, C-SPAN (Dec. 2,

2017) . 2017). 844

See @real DonaldTrump 12/2/ 17 (9:06 p.m. ET) Tweet ("So General Flynn lies to the FBI and his life is destroyed, while Crooked Hillary Clinton, on that now famous FBI holiday 'interrogation' with no swearing in and no recording, lies many times .. . and nothing happens to her? Rigged system, or just a double standard?"); President Trump Departure Remarks, C-SPAN (Dec. 4, 2017) ("Well, I feel badly for General Flynn. I feel very badly. He' s led a very strong life. And I feel very badly."). 845

President Trump White House Departure, C-SPAN (Dec. 15, 2017).

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counts. 846 The charges in both cases alleged criminal conduct by Manafort that began as early as 2005 and continued through 2018. 847 In January 2018, Manafort told Gates that he had talked to the President's personal counsel and they were "going to take care of us."848 Manafort told Gates it was stupid to plead, saying that he had been in touch with the President's personal counsel and repeating that they should "sit tight" and "we'll be taken care of."849 Gates asked Manafort outright if anyone mentioned pardons and 850 Manafort said no one used that word. As the proceedings against Manafort progressed in court, the President told Porter that he 851 never liked Manafort and that Manafort did not know what he was doing on the campaign. The President discussed with aides whether and in what way Manafort might be cooperating with the Special Counsel's investigation, and whether Manafort knew any information that would be harmful to the President. 852 In public, the President made statements criticizing the prosecution and suggesting that Manafort was being treated unfairly. On June 15, 2018, before a scheduled court hearing that day on whether Manafort' s bail should be revoked based on new charges that Manafort had tampered with witnesses while out on bail, the President told the press, "T feel badly about a lot of them 846

Indictment, United States v. Paul J Manafort, Jr. and Richard W. Gates III, 1:17-cr-201 (D.D.C. Oct, 27, 2017), Doc. 13 ("Manafort and Gates D.D.C. Indictment"); Indictment, United States v. Paul J Manafort, Jr. and Richard W. Gates Ill, I: 18-cr-83 (E.D. Va. Feb. 22, 2018), Doc. 9 ("Manafort and Gates E.D. Va. Indictment") 847

Manafort and Gates D.D.C. Indictment; Manafort and Gates E.D. Va. Indictment.

848 Gates 4/18/ 18 302, at 4. In February 2018, Gates pleaded guilty, pursuant to a cooperation plea agreement, to a superseding criminal information charging him with conspiring to defraud and commit multiple offenses (i.e., tax fraud, failure to report foreign bank accounts, and acting as an unregistered agent of a foreign principal) against the United States, as well as making false statements to our Office. Superseding Criminal Information, United States v. Richard W. Gates III, I : 17-cr-20 I (D.D.C. Feb. 23, 2018), Doc. 195; Plea Agreement, United States v. Richard W Gates Ill, I :17-cr-201 (D.D.C. Feb. 23, 2018), Doc. 205. Gates has provided information and in-court testimony that the Office has deemed to be reliable. 849

Gates 4/ 18/18 302, at 4.

850

Gates 4/ 18/ 18 302, at 4. Manafort told this Office that he never told Gates that he had talked to the President's personal counsel or suggested that they would be taken care of. Manafort also said he hoped for a pardon but never discussed one with the President, although he noticed the President' s public comments about pardons. Manafort 10/ 1/18 302, at 11. As explained in Volume I, Section IV.A.8, supra, Manafort entered into a plea agreement with our Office. The U.S. District Court for the District of Columbia determined that he breached the agreement by being untruthful in proffer sessions and before the grand jury . Order, United States v. Manafort, 1: 17-cr-201 (D.D.C. Feb. 13, 2019), Doc. 503. 851

Porter 5/8/18 302, at 11. Priebus recalled that the President never really liked Manafort. See Priebus 4/3 /18 302, at 11 . Hicks said that candidate Trump trusted Manafort's judgment while he worked on the Campaign, but she also once heard Trump tell Gates to keep an eye on Manafort. Hicks 3/ 13/18 302, at 16. 852

Porter 5/8/ 18 302, at 11; McGahn 12/ 14/17 302, at 14. 123

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because I think a lot of it is very unfair. I mean, I look at some of them where they go back 12 years. Like Manafort has nothing to do with our campaign. But I feel so--1 tell you, I feel a little badly about it. They went back 12 years to get things that he did 12 years ago? ... I feel badly for some people, because they've gone back 12 years to find things about somebody, and I don't think it's right."853 In response to a question about whether he was considering a pardon for Manafort or other individuals involved in the Special Counsel's investigation, the President said, "T don't want to talk about that. No, I don't want to talk about that. ... But look, I do want to see people treated fairly. That's what it's all about." 854 Hours later, Manafort' s bail was revoked and the President tweeted, "Wow, what a tough sentence for Paul Manafort, who has represented Ronald Reagan, Bob Dole and many other top political people and campaigns. Didn't know Manafort was the head of the Mob. What about Corney and Crooked Hillary and all the others? Very unfair!" 855 Immediately following the revocation of Manafort's bail, the President's personal lawyer, Rudolph Giuliani, gave a series of interviews in which he raised the possibility of a pardon for Manafort. Giuliani told the New York Daily News that "[w]hen the whole thing is over, things might get cleaned up with some presidential pardons." 856 Giuliani also said in an interview that, although the President should not pardon anyone while the Special Counsel's investigation was ongoing, "when the investigation is concluded, he's kind of on his own, right?" 857 In a CNN interview two days later, Giuliani said, "T guess I should clarify this once and for all. . . . The president has issued no pardons in this investigation. The president is not going to issue pardons in this investigation .... When it's over, hey, he' s the president of the United States. He retains his pardon power. Nobody is taking that away from him."858 Giuliani rejected the suggestion that his and the President' s comments could signal to defendants that they should not cooperate in a criminal prosecution because a pardon might follow, saying the comments were "certainly not intended that way." 859 Giuliani said the comments only acknowledged that an individual involved in the investigation would not be "excluded from [a pardon], ifin fact the president and his advisors . . . come to the conclusion that you have been treated unfairly." 860 Giuliani observed that pardons were not unusual in political investigations but said, "That doesn't mean they're going to happen

853

Remarks by President Trump in Press Gaggle, White House (June 15, 2018).

854

Remarks by President Trump in Press Gaggle, White House (June 15, 2018).

855

@realDonaldTrump 6/ 15/ 18 (1 :41 p.m. ET) Tweet.

856

Chris Sommerfeldt, Rudy Giuliani says Mueller probe 'might get cleaned up' with 'presidential pardons' in light of Paul Manafort going to jail, New York Daily News (June 15, 2018). 857

Sharon LaFraniere, Judge Orders Paul Manafort Jailed Before Trial, Citing New Obstruction Charges, New York Times (June 15, 2018) (quoting Giuliani). 858

State of the Union with Jake Tapper Transcript, CNN (June 17, 2018); see Karoun Demitjian, Giuliani suggests Trump may pardon Manafort after Mueller's probe, Washington Post (June 17, 2018). 859

State of the Union with Jake Tapper Transcript, CNN (June 17, 2018).

860

State of the Union with Jake Tapper Transcript, CNN (June 17, 2018).

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here. Doesn't mean that anybody should rely on it. ... Big signal is, nobody has been pardoned yet. ,,s6t On July 31, 2018, Manafort's criminal trial began in the Eastern District of Virginia, generating substantial news coverage. 862 The next day, the President tweeted, "This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it continues to stain our country any further. Bob Mueller is totally conflicted, and his 17 Angry Democrats that are doing his dirty work are a disgrace to USA!"863 Minutes later, the President tweeted, "Paul Manafort worked for Ronald Reagan, Bob Dole and many other highly prominent and respected political leaders. He worked for me for a very short time. Why didn't government tell me that he was under investigation. These old charges have nothing to do with Collusion- a Hoax! " 864 Later in the day, the President tweeted, "Looking back on history, who was treated worse, Alfonse Capone, legendary mob boss, killer and 'Public Enemy Number One,' or Paul Manafort, political operative & Reagan/Dole darling, now serving solitary confinement- although convicted of nothing? Where is the Russian Collusion?" 865 The President's tweets about the Manafort trial were widely covered by the press.866 When asked about the President's tweets, Sanders told the press, " Certainly, the President's been clear. He thinks Paul Manafort' s been treated unfairly." 867 On August 16, 2018, the Manafort case was submitted to the jury and deliberations began. At that time, Giuliani had recently suggested to reporters that the Special Counsel investigation needed to be "done in the next two or three weeks," 868 and media stories reported that a Manafort acquittal would add to criticism that the Special Counsel investigation was not worth the time and 869 expense, whereas a conviction could show that ending the investigation would be premature.

861

State of the Union with Jake Tapper Transcript, CNN (June 17, 2018).

862

See, e.g. , Katelyn Polantz, Takeaways from day one of the Paul Manafort trial, CNN (July 31 , 2018); Frank Bruni, Paul Manafort 's Trial Is Donald Trump's, Too , New York Times Opinion (July 31 , 2018); Rachel Weiner et al., Paul Manafort trial Day 2: Witnesses describe extravagant clothing purchases, home remodels, lavish cars paid with wire transfers, Washington Post (Aug. 1, 2018). 863

@rea!DonaldTrump 8/1/18 (9:24 a.m. ET) Tweet. Later that day, when Sanders was asked about the President's tweet, she told reporters, "It's not an order. It's the President's opinion." Sarah Sanders, White House Daily Briefing, C-SPAN (Aug. I, 2018). 864

@realDonaldTrump 8/1/18 (9:34 a.m. ET) Tweet.

865

@realDonaldTrump 8/1/18 (11 :35 a.m. ET) Tweet.

866

See, e.g. , Carol D. Leonnig et al., Trump calls Manafort prosecution "a hoax, " says Sessions should stop Mueller investigation "right now", Washington Post (Aug. 1, 2018); Louis Nelson, Trump claims Manafort case has "nothing to do with collusion", Politico (Aug. 1.2018). 867

Sarah Sanders, White House Daily Briefing, C-SPAN (Aug. 1, 2018).

868

Chris Strohm & Shannon Pettypiece, Mueller Probe Doesn't Need to Shut Down Before Midterms, Officials Say, Bloomberg (Aug. 15, 2018). 869

See, e.g., Katelyn Polantz et al., Manafort jury ends first day ofdeliberations without a verdict, CNN (Aug. 16, 2018); David Voreacos, What Mueller 's Manafort Case Means for the Trump Battle to 125

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On August 17, 2018, as jury deliberations continued, the President commented on the trial from the South Lawn of the White House. In an impromptu exchange with reporters that lasted approximately five minutes, the President twice called the Special Counsel's investigation a "rigged witch hunt."870 When asked whether he would pardon Manafort if he was convicted, the President said, "I don't talk about that now. I don't talk about that." 871 The President then added, without being asked a further question, "I think the whole Manafort trial is very sad when you look at what's going on there. I think it's a very sad day for our country. He worked for me for a very short period of time . But you know what, he happens to be a very good person. And l think it's 873 very sad what they've done to Paul Manafort." 872 The President did not take further questions. In response to the President's statements, Manafort's attorney said, "Mr. Manafort really appreciates the support of President Trump." 874 On August 21 , 2018, the jury found Manafort guilty on eight felony counts. Also on August 21 , Michael Cohen pleaded guilty to eight offenses, including a campaign-finance violation that he said had occurred " in coordination with, and at the direction of, a candidate for federa l office." 875 The President reacted to Manafort's convictions that day by telling reporters, "Paul Manafort's a good man" and "it's a very sad thing that happened." 876 The President described the Special Counsel's investigation as "a witch hunt that ends in disgrace. " 877 The next day, the President tweeted, "I feel very badly for Paul Manafort and his wonderful family. ' Justice' took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike Michael Cohen, he refused to 'break'-make up stories in order to get a 'deal.' Such respect for a brave man!"878 In a Fox News interview on August 22, 2018, the President said: "[Cohen] makes a better deal when he uses me, like everybody else. And one of the reasons I respect Paul Manafort so much is he went through that trial-you know they make up stories. People make up stories. This

Come, Bloomberg (Aug. 2, 2018); Gabby Morrongiello, What a guilty verdict for Manafort would mean for Trump and Mueller, Washington Examiner (Aug. 18, 2018) . 870

President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018).

871

President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018).

872

President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018) .

873

President Trump Remarks on John Brennan and Mueller Probe, C-SPAN (Aug. 17, 2018).

Trump calls Manafort "very good person," All In with Chris Hayes (Aug. 17, 2018) (transcript); Manafort lawyer: We appreciate Trump's support, CNN (Aug. 17, 2018) (https://www.cnn.com/videos/politics/2018/08/ 17/paul-manafort-attorney-trump-jury-deliberationsschneider-lead-vpx.cnn). 874

875

Transcript at 23, United States v. Michael Cohen, l:18-cr-602 (S.D.N.Y. Aug. 21 , 2018), Doc. 7 (Cohen 8/21/18 Transcript). 876

President Trump Remarks on Manafort Trial, C-SPAN (Aug. 21 , 2018).

877

President Trump Remarks on Manafort Trial, C-SPAN (Aug. 21, 2018).

878

@realDonaldTrump 8/22/18 (9:21 a.m. ET) Tweet.

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whole thing about flipping, they call it, T know all about flipping." 879 The President said that flipping was "not fair" and "almost ought to be outlawed." 880 ln response to a question about whether he was considering a pardon for Manafort, the President said, "T have great respect for what he's done, in terms of what he's gone through .. .. He worked for many, many people many, many years, and I would say what he did, some of the charges they threw against him, every consultant, every lobbyist in Washington probably does." 881 Giuliani told journalists that the President "really thinks Manafort has been horribly treated" and that he and the President had discussed the political fallout if the President pardoned Manafort. 882 The next day, Giuliani told the Washington Post that the President had asked his lawyers for advice on the possibility of a pardon for Manafort and other aides, and had been counseled against considering a pardon until the investigation concluded. 883 On September 14, 2018, Manafort pleaded guilty to charges in the District of Columbia and signed a plea agreement that required him to cooperate with investigators. 884 Giuliani was reported to have publicly said that Manafort remained in a joint defense agreement with the President following Manafort's guilty plea and agreement to cooperate, and that Manafort' s attorneys regularly briefed the President' s lawyers on the topics discussed and the information Manafort had provided in interviews with the Special Counsel's Office. 885 On November 26, 2018, the Special Counsel's Office disclosed in a public court filing that Manafort had breached his plea agreement by lying about multiple subjects. 886 The next day, Giuliani said that the President had been "upset for weeks" about what he considered to be "the un-American, horrible treatment of

879

Fox & Friends Exclusive Interview with President Trump, Fox News (Aug. 23, 2018) (recorded the previous day).

Â°Fox & Friends Exclusive Interview with President Trump, Fox News (Aug. 23, 2018) (recorded the previous day). 88

881

Fox & Friends Exclusive Interview with President Trump, Fox News (Aug. 23, 2018) (recorded the previous day). 882

Maggie Haberman & Katie Rogers, "How Did We End Up Here?" Trump Wonders as the White House Soldiers On, New York Times (Aug. 22, 20 18). .

883

Carol D. Leonnig & Josh Dawsey, Trump recently sought his lawyers' advice on possibility of pardoning Manafort, Giuliani says, Washington Post (Aug. 23, 2018). 884

Plea Agreement, United States v. Paul J Manafort, Jr., 1: I 7-cr-201 (D.D.C. Sept. 14, 2018),

Doc. 422. 885

Karen Freifeld & Nathan Layne, Trump lawyer: Manafort said nothing damaging in Mueller interviews, Reuters (Oct. 22, 2018); Michael S. Schmidt et al., Manafort 's Lawyer Said to Brief Trump Attorneys on What He Told Mueller, New York Times (Nov. 27, 2018); Dana Bash, Manaforl team briefed Giuliani on Mueller meetings, CNN, Posted 11/28/18, available at https ://www .cnn.com/videos/pol itics/2018/ 1 I /28/manafort-la wyers-keeping-trump-lawyers-gi ul ianiupdated-mueller-probe-bash-sot-nr-vpx.cnn; see Sean Hannity, Interview with Rudy Giuliani, Fox News (Sept. 14, 2018) (Giuliani: "[T]here was a quote put out by a source close to Manafort that the plea agreement has, and cooperation agreement has, nothing to do with the Trump campaign .... Now, I know that because I've been privy to a lot of facts I can't repeat."). 886

Joint Status Report, United States v. Paul J Manafort, Jr., (D.D.C Nov. 26, 2018), Doc. 455 .

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Manafort." 887 In an interview on November 28, 2018, the President suggested that it was "very brave" that Manafort did not "flip":

If you told the truth, you go to jail. You know this flipping stuff is terrible. You flip and you lie and you get-the prosecutors will tell you 99 percent of the time they can get people to flip. It's rare that they can't. But I had three people: Manafort, Corsi-I don' t know Corsi, but he refuses to say what they demanded. 888 Manafort, Corsi . It' s 889 actually very brave. In response to a question about a potential pardon for Manafort, the President said, "It was never 890 discussed, but I wouldn't take it off the table. Why would I take it off the table?"

3. Harm to Ongoing Matter

Harm to Ongoing Matter :ÂˇÂˇ Harm to Ongoing Matter 887

Stephen Collinson, Trump appears consumed by Mueller investigation as details emerge, CNN (Nov. 29, 2018). 888

"Corsi" is a reference to Jerome Corsi, who was involved in efforts to coordinate with WikiLeaks and Assange, and who stated publicly at that time that he had refused a plea offer f r o ~ 's Office because he was "not going to sign a lie." Sara Murray & Eli W a t k i n s , ~ says he won't agree to plea deal, CNN (Nov. 26, 2018). 889

Marisa Schultz & Nikki Schwab, Oval Office Interview with President Trump: Trump says pardon for Paul Manafort still a possibility, New York Post (Nov. 28, 2018). That same day, the President tweeted: "While the disgusting Fake News is doing everything within their power not to report it that way, at least 3 major players are intimating that the Angry Mueller Gang ofDems is viciously telling witnesses to lie about facts & they will get relief. This is our Joseph McCarthy Era!" @rea!DonaldTrump 11/28/18 (8:39 a.m. ET) Tweet. 890

Marisa Schultz & Nikki Schwab, New York Post Oval Office Interview with President Trump: Trump says pardon for Paul Manafort still a possibility, New York Post (Nov. 28, 2018).

128

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-â&#x20AC;˘

895

Harm to Ongoing Matter

896

Harm to Ongoing Matter

129

U.S. Department of Justice Attonte)' Vloflc Preeh:1et // May Cofltttifl Matefittl Pfoteetetl UHE:ler Fee. R. Cfim. P . 6(e)

900

Harm to Ongoing Matter

905

Harm to Ongoing Matter

907

Harm to Ongoing Matter

908

Harm to Ongoing Matter 130

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Analysis In analyzing the President's conduct towards Flynn, Manafort, evidence is relevant to the elements of obstruction of justice:

litia, the following

a. Obstructive act. The President's actions towards witnesses in the Special Counsel's investigation would qualify as obstructive if they had the natural tendency to prevent particular witnesses from testifying truthfully, or otherwise would have the probable effect of influencing, delaying, or preventing their testimony to law enforcement. With regard to Flynn, the President sent private and public messages to Flynn encouraging him to stay strong and conveying that the President still cared about him before he began to cooperate with the government. When Flynn 's attorneys withdrew him from a joint defense agreement with the President, signaling that Flynn was potentially cooperating with the government, the President's personal counsel initially reminded Flynn's counsel of the President's warm feelings towards Flynn and said "that still remains." But when Flynn's counsel reiterated that Flynn could no longer share information under a joint defense agreement, the President's personal counsel stated that the decision would be interpreted as reflecting Flynn's hostility towards the President. That sequence of events could have had the potential to affect Flynn's decision to cooperate, as well as the extent of that cooperation. Because of privilege issues, however, we could not determine whether the President was personally involved in or knew about the specific message his counsel delivered to Flynn's counsel. With respect to Manafort, there is evidence that the President' s actions had the potential to influence Manafort' s decision whether to cooperate with the government. The President and his personal counsel made repeated statements suggesting that a pardon was a possibility for Manafort, while also making it clear that the President did not want Manafort to "flip" and cooperate with the government. On June 15, 2018, the day the judge presiding over Manafort's D.C. case was considering whether to revoke his bail, the President said that he "felt badly" for Manafort and stated, "I think a lot of it is very unfair." And when asked about a pardon for Manafort, the President said, "I do want to see people treated fairly . That's what it's all about." Later that day, after Manafort's bail was revoked, t_he President called it a "tough sentence" that was "Very unfair! " Two days later, the President's personal counsel stated that individuals involved in the Special Counsel ' s investigation could receive a pardon "if in fact the [P]resident and his advisors ... come to the conclusion that you have been treated unfairly"- using language that paralleled how the President had already described the treatment of Manafort. Those statements, combined with the President's commendation ofManafort for being a "brave man" who "refused to 'break' ," suggested that a pardon was a more likely possibility if Manafort continued not to cooperate with the government. And while Manafort eventually pleaded guilty pursuant to a cooperation agreement, he was found to have violated the agreement by lying to investigators. The President's public statements during the Manafort trial, including during jury deliberations, also had the potential to influence the trial jury. On the second day of trial, for example, the President called the prosecution a "terrible situation" and a "hoax" that "continues to stain our country" and referred to Manafort as a "Reagan/Dole darling" who was "serving solitary confinement" even though he was "convicted of nothing." Those statements were widely picked up by the press. While jurors were instructed not to watch or read news stories about the case and 131

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are presumed to follow those instructions, the President's statements during the trial generated substantial media coverage that could have reached jurors if they happened to see the statements or learned about them from others. And the President' s statements during jury deliberations that Manafort "happens to be a very good person" and that "it's very sad what they've done to Paul Manafort" had the potential to influence jurors who learned of the statements, which the President made just as jurors were considering whether to convict or acquit Manafort.

ma b.

Nexus to an official proceeding. The President's actions towards Flynn, Manafort, appear to have been connected to pending or ~ d official proceedings involving each individual. The President's conduct towards F l y n n - principally occurred when both were under criminal investigation by the Special Counsel's Office and press reports speculated about whether they would cooperate with the Special Counsel' s investigation. And the President's conduct towards Manafort was directly connected to the official proceedings involving him. The President made statements about Manafort and the charges against him during Manafort' s criminal trial. And the President' s comments about the prospect of Manafort "flipping" occurred when it was clear the Special Counsel continued to oversee grand jury proceedings. c. Intent. Evidence concerning the President' s intent related to Flynn as a potential witness is inconclusive. As previously noted, because of privilege issues we do not have evidence establishing whether the President knew about or was involved in his counsel' s communications with Flynn 's counsel stating that Flynn's decision to withdraw from the joint defense agreement and cooperate with the government would be viewed as reflecting "hostility" towards the President. And regardless of what the President' s personal counsel communicated, the President continued to express sympathy for Flynn after he pleaded guilty pursuant to a cooperation agreement, stating that Flynn had " led a very strong life" and the President "fe[lt] very badly" about what had happened to him. Evidence concerning the President's conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government. Before Manafort was convicted, the President repeatedly stated that Manafort had been treated unfairly. One day after Manafort was convicted on eight felony charges and potentially faced a lengthy prison term, the President said that Manafort was "a brave man" for refusing to "break" and that "flipping" "almost ought to be outlawed." At the same time, although the President had privately told aides he did not like Manafort, he publicly called Manafort "a good man" and said he had a "wonderful family. " And when the President was asked whether he was considering a pardon for Manafort, the President did not respond directly and instead said he had "great respect for what [Manafort]'s done, in terms of what he's gone through." The President added that " some of the charges they threw against him, every consultant, every lobbyist in Washington probably does." In light of the President' s counsel ' s previous statements that the investigations "might get cleaned up with some presidential pardons" and that a pardon would be possible if the President "come[ s] to the conclusion that you have been treated unfairly," the evidence supports the inference that the

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President intended Manafort to believe that he could receive a pardon, which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary. We also examined the evidence of the President's intent in making public statements about Manafort at the beginning of his trial and when the jury was deliberating. Some evidence supports a conclusion that the President intended, at least in part, to influence the jury. The trial generated widespread publicity, and as the jury began to deliberate, commentators suggested that an acquittal would add to pressure to end the Special Counsel's investigation. By publicly stating on the second day of deliberations that Manafort " happens to be a very good person" and that "it's very sad what they' ve done to Paul Manafort" right after calling the Special Counsel's investigation a "rigged witch hunt," the President's statements could, if they reached jurors, have the natural tendency to engender sympathy for Manafort among jurors, and a factfinder could infer that the President intended that result. But there are alternative explanations for the President's comments, including that he genuinely felt sorry for Manafort or that his goal was not to influence the jury but to influence public opinion. The President's comments also could have been intended to continue sending a message to Manafort that a pardon was possible. As described above, the President made his comments about Manafort being "a very good person" immediately after declining to answer a question about whether he would pardon Manafort.

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The President's Conduct Involving Michael Cohen Overview

The President's conduct involving Michael Cohen spans the full period of our investigation. During the campaign, Cohen pursued the Trump Tower Moscow project on behalf of the Trump Organization. Cohen briefed candidate Trump on the project numerous times, including discussing whether Trump should travel to Russia to advance the deal. After the media began questioning Trump' s connections to Russia, Cohen promoted a "party line" that publicly distanced Trump from Russia and asserted he had no business there. Cohen continued to adhere to that party line in 2017, when Congress asked him to provide documents and testimony in its Russia investigation. In an attempt to minimize the President's connections to Russia, Cohen submitted a letter to Congress falsely stating that he only briefed Trump on the Trump Tower Moscow project three times, that he did not consider asking Trump to travel to Russia, that Cohen had not received a response to an outreach he made to the Russian government, and that the project ended in January 2016, before the first Republican caucus or primary. While working on the congressional statement, Cohen had extensive discussions with the President's personal counsel, who, according to Cohen, said that Cohen should not contradict the President and should keep the statement short and "tight." After the FBI searched Cohen ' s home and office in April 2018, the President publicly asserted that Cohen would not "flip" and privately passed messages of support to him . Cohen also discussed pardons with the President's personal counsel and believed that if he stayed on message, he would get a pardon or the President would do "something else" to make the investigation end. But after Cohen began cooperating with the government in July 2018, the President publicly criticized him, called him a "rat," and suggested his family members had committed crimes.

Evidence 1. Candidate Trump's Awareness of and Involvement m the Trump Tower Moscow Project The President' s interactions with Cohen as a witness took place against the background of the President's involvement in the Trump Tower Moscow project. As described in detail in Volume I, Section IV.A. I, supra, from September 2015 until at least June 2016, the Trump Organization pursued a Trump Tower Moscow project in Russia, with negotiations conducted by Cohen, then-executive vice president of the Trump Organization and special counsel to Donald J. Trump. 909 The Trump Organization had previously and 909 In August 2018 and November 2018, Cohen pleaded guilty to multiple crimes of deception, including making false statements to Congress about the Trump Tower Moscow project, as described later in this section. When Cohen first met with investigators from this Office, he repeated the same lies he told Congress about the Trump Tower Moscow project. Cohen 8/7 / 18 302, at 12-17. But after Cohen pleaded guilty to offenses in the Southern District ofNew York on August 21, 2018, he met with investigators again and corrected the record. The Office found Cohen's testimony in these subsequent proffer sessions to be consistent with and corroborated by other information obtained in the course of the Office's investigation. The Office's sentencing submission in Cohen's criminal case stated: "Starting with his second meeting with the [Special Counsel ' s Office] in September 2018, the defendant has accepted responsibility not only for

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unsuccessfully pursued a building project in Moscow. 910 According to Cohen, in approximately September 2015 he obtained internal approval from Trump to negotiate on behalf of the Trump Organization to have a Russian corporation build a tower in Moscow that licensed the Trump name 912 and brand. 911 Cohen thereafter had numerous brief conversations with Trump about the project. Cohen recalled that Trump wanted to be updated on any developments with Trump Tower Moscow 913 and on several occasions brought the project up with Cohen to ask what was happening on it. Cohen also discussed the project on multiple occasions with Donald Trump Jr. and Ivanka Trump.914 In the fall of 2015, Trump signed a Letter of Intent for the project that specified highly lucrative terms for the Trump Organization. 915 In December 2015, Felix Sater, who was handling negotiations between Cohen and the Russian corporation, asked Cohen for a copy of his and Trump 's passports to facilitate travel to Russia to meet with government officials and possible financing partners.916 Cohen recalled discussing the trip with Trump and requesting a copy of Trump 's passport from Trump' s personal secretary, Rhona Graff. 917 By January 2016, Cohen had become frustrated that Sater had not set up a meeting with Russian government officials, so Cohen reached out directly by email to the office of Dmitry

his false statements concerning the [Trump Tower] Moscow Project, but also his broader efforts through public statements and testimony before Congress to minimize his role in, and what he knew about, contacts between the [Trump Organization] and Russian interests during the course of the campaign. . . . The information provided by Cohen about the [Trump Tower] Moscow Proj ect in these proffer sess ions is consistent with and corroborated by other information obtained in the course of the [Special Counsel's Office' s] investigation. . . . The defendant, without prompting by the [Special Counsel's Office], also corrected other false and misleading statements that he had made concerning his outreach to and contacts with Russian officials during the course of the campaign." Gov' t Sentencing Submission at 4, United States v. Michael Cohen, 1: 18-cr-850 (S.D.N. Y. Dec. 7, 2018), Doc. 14. At Cohen's sentencing, our Office further explained that Cohen had "provided valuable information .. . while taking care and being careful to note what he knows and what he doesn ' t know." Transcript at 19, United States v. Michael Cohen, 1: l 8-cr-850 (S.D.N.Y. Dec. 12, 2018), Doc. 17 (Cohen 12/12/18 Transcript). 91 0 See Volume I, Section IV .A.1 , supra (noting that starting in at least 2013, several employees of the Trump Organization, including then-president of the organization Donald J. Trump, pursued a Trump Tower Moscow deal with several Russian counterparties). 9 11

Cohen 9/12/18 302, at 1-4; Cohen 8/7/ 18 302, at 15.

912

Cohen 9/12/ 18 302, at 2, 4.

913

Cohen 9/12/18 302, at 4.

9 14

Cohen 9/12/18 302, at 4, I 0.

9 15

MDC-H-000618-25 ( I 0/28/15 Letter ofintent, s igned by Donald J. Trump, Trump Acquisition, LLC and Andrey Rozov, I.C. Expert Investment Company); Cohen 9/ 12/18 302, at 3; Written Responses of Donald J . Trump (Nov. 20, 2018), at 15 (Response to Question III, Parts (a) through (g)) . 91 6

MDC-H-000600 ( 12/19/ 15 Email, Sater to Cohen).

91 7

Cohen 9/ 12/ 18 302, at 5.

135

U.S. Department of Justice

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918

Peskov, who was Putin ' s deputy chief of staff and press secretary. On January 20, 2016, Cohen received an email response from Elena Poliakova, Peskov ' s personal assistant, and phone records confirm that they then spoke for approximately twenty minutes, during which Cohen described the 919 Trump Tower Moscow project and requested assistance in moving the project forward. Cohen 92 recalled briefing candidate Trump about the call soon afterwards. Cohen told Trump he spoke with a woman he identified as " someone from the Kremlin," and Cohen reported that she was very professional and asked detailed questions about the project. 921 Cohen recalled telling Trump he wished the Trump Organization had assistants who were as competent as the woman from the Kremlin. 922

Â°

923

Cohen thought his phone call renewed interest in the project. The day after Cohen ' s call with Poliakova, Satertexted Cohen, asking him to "[c]all me when you have a few minutes to chat ... It's about Putin they called today."924 Sater told Cohen that the Russian government liked the project and on January 25, 2016, sent an invitation for Cohen to visit Moscow " for a working visit." 925 After the outreach from Sater, Cohen recalled telling Trump that he was waiting to hear back on moving the project forward. 926 After January 2016, Cohen continued to have conversations with Sater about Trump Tower Moscow and continued to keep candidate Trump updated about those discussions and the status of the project. 9 27 Cohen recalled that he and Trump wanted Trump Tower Moscow to succeed and 928 that Trump never discouraged him from working on the project because of the campaign. In 929 March or April 2016, Trump asked Cohen if anything was happening in Russia. Cohen also 918

See FS00004 (12/3 0/15 Text Message, Cohen to Sater); TRUMPORG_ MC_000233 (l/ 11 / 16 Email, Cohen to pr_peskova@prpress.gof.ru); MDC-H-000690 (1 / 14/ 16 Email, Cohen to info@prpress.gov.ru); TRUMPORG_MC_000235 (l/16/ 16 Email, Cohen to pr_peskova@ prpress.gov.ru). 919

1/20/16 Email, Poliakova to Cohen; Call Records ofMichael Cohen. (Showing a 22-minute call on January 20, 2016, between Cohen and the number Poliakova provided in her email); Cohen 9/12/ 18 302, at 2-3. After the call, Cohen saved Poliakova' s contact information in his Trump Organization Outlook contact list. 1/20/ 16 Cohen Microsoft Outlook Entry (6:22 a.m.). 92

Â°Cohen 11/20/ 18 302, at 5.

92 1

Cohen 11 /20/18 302, at 5-6; Cohen l l/12/ 18 302, at 4.

922

Cohen 11/20/ 18 302, at 5.

923

Cohen 9/12/ 18 302, at 5.

924

FSOOO 11 ( l/21 /16 Text Messages, Sater & Cohen).

925

Cohen 9/12/ 18 302, at 5; 1/25/16 Email, Sater to Cohen (attachment).

926

Cohen 11 /20/18 302, at 5.

927

Cohen 9/ 12/ 18 302, at 6. In later congressional testimony, Cohen stated that he briefed Trump on the project approximately six times after January 2016. Hearing on Issues Related to Trump Organization Before the House Oversight and Reform Committee, 1161h Cong. (Feb. 27, 2019) (CQ Cong. Transcripts, at 24) (testimony of Michael Cohen). 928

Cohen 9/ 12/18 302, at 6.

929

Cohen 9/ 18/18 302, at 4. 136

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recalled briefing Donald Trump Jr. in the spring-a conversation that Cohen said was not " idle chit chat" because Trump Tower Moscow was potentially a $ I billion deal.930 Cohen recalled that around May 2016, he again raised with candidate Trump the possibility of a trip to Russia to advance the Trump Tower Moscow project. 93 1 At that time, Cohen had received several texts from Sater seeking to arrange dates for such a trip. 932 On May 4, 2016, Sater wrote to Cohen, "T had a chat with Moscow. ASSUMING the trip does happen the question is before or after the convention . . ... Obviously the premeeting trip (you only) can happen anytime you want but the 2 big guys [is] the question. T said I would confirm and revert." 933 Cohen responded, "My trip before Cleveland. Trump once he becomes the nominee after the convention." 934 On May 5, 2016, Sater followed up with a text that Cohen thought he probably read to Trump: Peskov would like to invite you as his guest to the St. Petersburg Forum which is Russia's Davos it's June 16-19. He wants to meet there with you and possibly introduce you to either Putin or Medvedev . . .. This is perfect. The entire business class of Russia will be there as well. He said anything you want to discuss including dates and subjects are on the table to discuss.935 Cohen recalled discussing the invitation to the St. Petersburg Economic Forum with candidate Trump and saying that Putin or Russian Prime Minister Dmitry Medvedev might be there. 936 Cohen remembered that Trump said that he would be willing to travel to Russia if Cohen could "lock and load" on the deal.937 In June 2016, Cohen decided not to attend the St. Petersburg 938 Economic Forum because Sater had not obtained a formal invitation for Cohen from Peskov. Cohen said he had a quick conversation with Trump at that time but did not tell him that the project was over because he did not want Trump to complain that the deal was on-again-off-again if it were revived. 939 During the summer of 2016, Cohen recalled that candidate Trump publicly claimed that he had nothing to do with Russia and then shortly afterwards privately checked with Cohen about the status of the Trump Tower Moscow project, which Cohen found "interesting." 940 At some point 93

Â°Cohen 9/ 12/18 302, at I 0.

931

Cohen 9/ 12/18 302, at 7.

932

Cohen 9/ 12/ 18 302, at 7.

933

FSOOO 15 (5/4/ 16 Text Message, Sater to Cohen) .

934

FS00015 (5/4/16 Text Message, Cohen to Sater).

935

FSOOO 16-17 (5/5/ 16 Text Messages, Sater & Cohen).

936

Cohen 9/ 12/18 302, at 7.

937

Cohen 9/12/18 302, at 7.

938

Cohen 9/ 12/18 302, at 7-8.

939

Cohen 9/ 12/ 18 302, at 8.

Â°Cohen 3/ 19/19 302, at 2. 137

U.S. Department of Justice AFl:6Ftte~Âˇ W6rlc: Pr6ettet // May C6tttaitt Material Pr6teetee Utteer Fee. R. Criffl. P. 6(e)

that summer, Cohen recalled having a brief conversation with Trump in which Cohen said the Trump Tower Moscow project was going nowhere because the Russian development company had not secured a piece of property for the project. 941 Trump said that was " too bad," and Cohen did not recall talking with Trump about the project after that. 942 Cohen said that at no time during the campaign did Trump tell him not to pursue the project or that the project should be abandoned.943 2. Cohen Determ ines to Adhere to a "Party Line" Distancing Candidate Trump From Russia As previously discussed, see Volume II, Section II.A, supra, when questions about possible Russian support for candidate Trump emerged during the 2016 presidential campaign, Trump denied having any personal, financial, or business connection to Russia, which Cohen described as the "party line" or "message" to follow for Trump and his senior advisors.944 After the election, the Trump Organization sought to formally close out certain deals in advance of the inauguration. 945 Cohen recalled that Trump Tower Moscow was on the list of deals to be closed out. 946 In approximately January 2017, Cohen began receiving inquiries from the media about Trump Tower Moscow, and he recalled speaking to the President-Elect when those inquiries came in .947 Cohen was concerned that truthful answers about the Trump Tower Moscow project might not be consistent with the "message" that the President-Elect had no relationship with Russia.948 In an effort to "stay on message," Cohen told a New York Times reporter that the Trump Tower Moscow deal was not feasible and had ended in January 2016. 949 Cohen recalled that this was part of a "script" or talking points he had developed with President-Elect Trump and others to 941

Cohen 3/ 19/19 302, at 2. Cohen could not recall the precise timing of this conversation, but said he thought it occurred in June or July 2016. Cohen recalled that the conversation happened at some point after candidate Trump was publicly stating that he had nothing to do with Russia. Cohen 3/ 19/19 302, at 2. 942

Cohen 3/19/19 302, at 2.

943

Cohen 3/ 19/ 19 302, at 2.

944

Cohen 11/20/ 18 302, at 1; Cohen 9/18/18 302, at 3, 5; Cohen 9/ 12/ 18 302, at 9.

945

Cohen 9/ 18/18 302, at 1-2; see also Rtskhiladze 4/4/ 18 302, at 8-9.

946

Cohen 9/ 18/ 18 302, at 1-2.

947

Cohen 9/ 18/18 302, at 3.

948

Cohen 11 /20/18 302, at 4.

949 Cohen 9/ 18/18 302, at 5. The article was published on February 19, 2017, and reported that Sater and Cohen had been working on plan for a Trump Tower Moscow "as recently as the fall of 2015" but had come to a halt because of the presidential campaign. Consistent with Cohen's intended party line message, the article stated, "Cohen said the Trump Organization had received a letter of intent for a project in Moscow from a Russian real estate developer at that time but determined that the project was not feasible." Megan Twohey & Scott Shane,A Back-Channel Plan for Ukraine and Russia, Courtesy of Trump Associates, New York Times (Feb. 19, 2017).

138

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Â°

dismiss the idea of a substantial connection between Trump and Russia. 95 Cohen said that he discussed the talking points with Trump but that he did not explicitly tell Trump he thought they were untrue because Trump already knew they were untrue. 951 Cohen thought it was important to say the deal was done in January 2016, rather than acknowledge that talks continued in May and June 2016, because it limited the period when candidate Trump could be alleged to have a relationship with Russia to an early point in the campaign, before Trump had become the party's presumptive nominee. 952 3. Cohen Submits False Statements to Congress Minimizing the Trump Tower Moscow Project in Accordance with the Party Line In early May 2017, Cohen received requests from Congress to provide testimony and documents in connection with congressional investigations of Russian interference in the 2016 election.953 At that time, Cohen understood Congress's interest in him to be focused on the allegations in the Steele reporting concerning a meeting Cohen allegedly had with Russian officials in Prague during the campaign.954 Cohen had never traveled to Prague and was not concerned about those allegations, which he believed were provably false. 955 On May 18, 2017, Cohen met with the President to discuss the request from Congress, and the President instructed Cohen that he should cooperate because there was nothing there. 956 Cohen eventually entered into a joint defense agreement (JOA) with the President and other individuals who were part of the Russia investigation. 957 In the months leading up to his congressional testimony, Cohen frequently spoke with the President's personal counsel. 958 Cohen

Â°Cohen 9/ 18/18 302, at 5-6.

95 1

Cohen 9/18/18 302, at 6.

952

Cohen 9/ 12/18 302, at I 0.

953

P-SC0-000000328 (5/9/17 Letter, HPSCI to Cohen); P-SC0-00000033 l (5/12/17 Letter, SSCI

to Cohen). 954

Cohen 11/20/18 302, at 2-3.

95 5

Cohen 11 /20/18 302, at 2-3.

956

Cohen 11 /12/18 302, at 2; Cohen I I /20/19 302, at 3.

957

Cohen I 1/12/18 302, at 2.

958

Cohen 11 / 12/18 302, at 2-3; Cohen 11 /20/ 18, at 2-6. Cohen told investigators about his conversations with the President' s personal counsel after waiving any privilege of his own and after this Office advised his counsel not to provide any communications that would be covered by any other privilege, including communications protected by a joint defense or common interest privilege. As a result, most of what Cohen told us about his conversations with the President' s personal counsel concerned what Cohen had communicated to the President's personal counsel, and not what was said in response. Cohen described cet1ain statements made by the President's personal counsel, however, that are set fo11h in this section. Cohen and his counsel were better positioned than this Office to evaluate whether any privilege protected those statements because they had knowledge of the scope of their joint defense agreement and access to privileged communications that may have provided context for evaluating the statements they shared. After interviewing Cohen about these matters, we asked the President's personal counsel if he wished to provide information to us about his conversations with Cohen related to Cohen' s congressional testimony about

139

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said that in those conversations the President's personal counsel would sometimes say that he had just been with the President. 959 Cohen recalled that the President' s personal counsel told him the JDA was working well together and assured him that there was nothing there and if they stayed on message the investigations would come to an end soon.960 At that time, Cohen's legal bills were being paid by the Trump Organization,961 and Cohen was told not to worry because the investigations would be over by summer or fall of 2017.962 Cohen said that the President's personal counsel also conveyed that, as part of the JOA, Cohen was protected, which he would not be if he "went rogue." 963 Cohen recalled that the President's personal counsel reminded him that "the President loves you" and told him that if he stayed on message, the President had his back. 964 In August 2017, Cohen began drafting a statement about Trump Tower Moscow to submit to Congress along with his document production. 965 The final version of the statement contained several false statements about the project. 966 First, although the Trump Organization continued to pursue the project until at least June 2016, the statement said, "The proposal was under consideration at the Trump Organization from September 2015 until the end of January 2016. By the end of January 2016, I determined that the proposal was not feasible for a variety of business reasons and should not be pursued further. Based on my business determinations, the Trump Organization abandoned the proposal."967 Second, although Cohen and candidate Trump had discussed possible travel to Russia by Trump to pursue the venture, the statement said, "Despite overtures by Mr. Sater, I never considered asking Mr. Trump to travel to Russia in connection with this proposal. I told Mr. Sater that Mr. Trump would not travel to Russia unless there was a definitive agreement in place."968 Third, although Cohen had regularly briefed Trump on the status

Trump Tower Moscow. The President's personal counsel declined and, through his own counsel, indicated that he could not disaggregate information he had obtained from Cohen from information he had obtained from other parties in the IDA. Tn view of the admonition this Office gave to Cohen's counsel to withhold communications that could be covered by privilege, the President's personal counsel's uncertainty about the provenance of his own knowledge, the burden on a privilege holder to establish the elements to support a claim of privilege, and the substance of the statements themselves, we have included relevant statements Cohen provided in this repo11. If the statements were to be used in a context beyond this report, further analysis could be warranted. 959

Cohen I I /20/ 18 302, at 6.

Â°Cohen 11/20/18 302, at 2, 4.

961

Cohen 11 /20/18 302, at 4.

962

Cohen 9/ 18/18 302, at 8; Cohen 11 /20/18 302, at 3-4.

963

Cohen 11/20/18 302, at 4.

964

Cohen 9/18/ 18 302, at 11; Cohen 11/20/18 302, at 2.

965

P-SC0-000003680 and P-SC0-0000003687 (8/16/17 Email and Attachment, Michael Cohen's Counsel to Cohen). Cohen said it was not his idea to write a letter to Congress about Trump Tower Moscow. Cohen 9/ 18/18 302, at 7. 966